Karnataka High Court
Sri Shivappa S/O Basappa Mudhol vs Sri Rajaramsingh Sattaramsingh Hajare ... on 17 August, 2012
Author: B.V.Nagarathna
Bench: B.V.Nagarathna
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IN THE HIGH COURT OF KARNATAKA
CIRCUIT BENCH AT DHARWAD
DATED THIS THE 17th DAY OF AUGUST, 2012
BEFORE
THE HON'BLE MRS.JUSTICE B.V.NAGARATHNA
R.S.A. No.1189/2008
Between:
Sri. Shivappa,
Aged about 60 years,
S/o. Basappa Mudhol,
Occ: Agriculture,
R/o. Jamakhandi,
Jamakhandi Taluk,
Bagalkot District.-587301.
...APPELLANT
(By Sri.Umesh M. Patil and V.R. Datar, Advs.,
And:
1. Sri. Rajaramsingh
Sattaramsingh Hajare @ Rajaput,
Age: Major,
Occ: Agriculture,
R/o.Near G.L.B.C. Office,
Kudachi Road,
Jamkhandi-587301.
2. The Sub Registrar,
Jamakhandi at
Jamkhandi-587301.
3. The Executive Engineer,
G.L.B.C. Dn. No.2,
Jamakhandi-587301.
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4. The Assistant Commissioner,
Jamakhandi,
Tal: Jamakhandi-587301.
5. The State of Karnataka,
Rep. By Deputy Commissioner,
Bagalkot at Bagalkot-587101.
6. The Manager,
Jamakhandi Urban Co-Op.
Bank Ltd., Jamakhandi,
Branch Girish Nagar,
Jamakhandi-587301.
7. Sri. Kumarasing Gangaramsing
Rajput, Aged Major,
Occ Trade, R/o. Jamakhandi Taluk,
Jamakhandi-587301.
8. Sri. Rakeshkumar Kantilal
Bhandari, Aged Major,
Occ: Trade,
R/o.Jamakhandi Taluk,
Jamakhandi-587301.
9. Karnataka Nirawari Nigam Ltd.,
Rep. By Executive Engineer,
G.L.B.C. Division No.2,
Jamakhandi,
Jamakhandi Taluk-587301.
10. Sri. Ningappa Basappa Mudhol,
Aged major, Occ: Agriculture,
Since dead by L.Rs.
10(a) Smt. Parawwa Ningappa
Mudhol, Aged 45 years,
Occ: Agriculture,
R/o. Jamakhandi 587301.
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10(b) Smt. Mahananda
W/o. Anand Chinamori,
Aged 23 years,
Occ: Household work,
R/o.Sankeshwar,
Taluk: Hukkeri,
Belgaum District-540021.
10(c) Sri. Santosh Ningappa
Mudhol, Aged 22 years,
Occ: Student,
R/o. Jamakhandi-587301.
10(d) Sri. Jagadish Ningappa
Mudhol, Aged 21 years,
Occ: Student,
R/o. Jamakhandi-587301.
10(e) Sunanda D/o. Ningappa Mudhol,
aged 20 years,
Occ: Student,
R/o. Jamakhandi-587301.
11. Sri. Mallikarjun Basappa Mudhol,
Aged Major, Occ: Agriculture,
R/o. Jamakhandi-587301.
...RESPONDENTS
(By Sri.M.G. Naganuri, Adv., for R1, Smt. K.Vidyavati, AGA
for R2 to R5, Sri. Sadiq N. Goodwala, Adv., for R9
R6, R7, R8, R10(a) to R10(e) and R11 are served)
This appeal is filed under Section 100 of C.P.C. against
the Judgement & Decree dated 15.2.2008 passed in R.A.
No.10/2007 on the file of the Presiding Officer, Fast Track
Court, Jamakhandi dismissing the appeal filed against the
judgment and decree dated 15.12.2006 passed in O.S.
No.163/2000 on the file of the Prl.Civil Judge (Jr.Dn.)
Jamkhandi, dismissing the suit filed for declaration,
injunction and possession etc.,
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This appeal coming on for admission this day, the
Court delivered the following:
JUDGMENT
The plaintiff has preferred this second appeal assailing the judgment and decree passed in R.A. No.10/2007, dated 15.2.2008, by the Fast Track Court, Jamakhandi, confirming the judgment and decree passed in O.S. No.163/2000 dated 15.12.2006, by the Civil Judge (Jr.Dn.), Jamakhandi.
2. It is the case of the original plaintiff that he filed the suit for declaration, injunction and in the alternative possession in respect of suit properties which are non- agricultural plots bearing CTS No.5127/B1 to 5127-B42 of Jamakhandi town. As per the hand sketch map at schedule- B, original agricultural land bearing Sy.No.35/2 of Hunnur which is now numbered as CTS No.5127/A, measuring 9 acres 32 guntas was previously belonging to the erstwhile princely State of Jamkhandi standing in the name of Pranay @ Parushuram Patawardhan of Jamkhandi. One Basappa Ningappa Mudhol the original plaintiff was the protected tenant of the said lands. After the enforcement of the 5 Karnataka Land Reforms Amendment Act, 1974, the said land stood vested in the State Government. The said Basappa Mudhol filed Form No.7 for grant of occupancy rights in favour of the entire extent of 9 acres 32 guntas. Out of 9 acres 32 guntas, it appears an extent of 4 acres 10 guntas has been acquired by the State Government for the purpose of construction of Sub-Divisional Staff quarters of GLBC in the year 1967. A gazettee notification to that effect had been published as notification No.RD 1146 LPW 65 dated 6.1.1966. That defendant No.1 is the owner of Sy.No.35/1 who has encroached upon acquired land as well as the remaining portion of Sy.No.35/2 on the southern side and in collusion with defendant No.3 and 4 got his name entered in the revenue records in Sy.No.35/2 by creating a separate strip by describing as Sy.No.35/2A, measuring 1A-19 guntas showing his name as Kabjedar of the said land without the knowledge of the plaintiff. Therefore, the said illegal entries have been assailed with regard to the separate of land in Sy. No.32/2A, measuring 19 guntas in respect of which defendant No.1 has no right, title or 6 interest. It is also contended that out of 9 acres 32 guntas, occupancy rights were granted to an extent of 8 acres 13 guntas by order dated 12.11.1978, by the Land Tribunal at Jamakhandi but the plaintiffs continues to be in possession of 1 acre 19 guntas of land and that the defendants have no right, title and interest in respect of 1 acre 19 guntas which is adjacent to the land granted to the original plaintiff. Therefore, the suit was filed seeking the relief of declaration and injunction or in the alternative possession.
3. In response to the suit summons and notices defendants appeared and filed their written statement. Defendant No.1 denied the averments of the plaint and contended that revenue entries have been made in favour of defendant No.1 to an extent of 1 acre 19 guntas that the said land has been converted for non-agricultural purpose. The same has not been granted to the original plaintiff and therefore they have no right, title and interest in the said land. Therefore, the plaintiffs have no right, title and interest with regard to the said land. Defendant Nos.8 and 9 adopted the written statement to defendant No.1. Defendant 7 No.6 also filed a separate written statement denying the plaint allegations and sought for dismissal of the suit, since no notice as required under Section 125 of the Karnataka Co-Operative Societies Act was issued. Defendant No.3 also filed a separate written statement contesting the suit and seeking dismissal of the same by contending that no notice under section 80 of the C.P.C. was issued. Defendant No.7 and 12 also sought for dismissal of the suit.
4. On the basis of the rival pleadings, the trial Court framed the following issues for its consideration:
ISSUES
1. Whether the plaintiffs prove that non-
agricultural proceedings dated 20.11.1999 is null and void?
2. Whether the plaintiffs prove that the defendants 1 and 2 are alienating the suit plots illegally?
3. Whether the plaintiff proves that he is entitled to possession of the suit strip Sy.No.35/2/A?
4. Whether the court fee paid is incorrect, if so what is the correct court fee?
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5. Whether the suit is barred under Order 2 of CPC?
6. Whether the suit is bad for non-joinder of necessary party?
7. Whether the court has no pecuniary jurisdiction?
8. Whether the plaintiffs are entitled to the relief sought for?
9. What order or decree?
(issue Nos.4 to 7 be heard as Preliminary issues) ADDITIONAL ISSUES
1. Whether the defendant No.6 proves that the suit is not maintainable as contended in para-2 of the written statement?
2. Whether the suit is time barred?
3. Does defendant No.6 proves that the plaint is required to be rejected as per order VII Rule II(a) of CPC due to want of cause of action to file the suit?
4. Does the defendant No.6 further proves that without impleading the Bank as party to the suit, the suit is not tenable?
(Addl. Issues 1 to 4 are deleted as per order dated 14.12.2004)
5. In respect of their case, plaintiff No.1 himself examined as PW.1 and produced twenty five documents 9 which were marked as Exs.P1 to P25 while, defendant No.1 examined himself as DW.1 and produced twenty two documents which were marked as Exs.D1 to D22. On the basis of the said evidence, the trial Court answered issue Nos.1 to 8 in the negative and dismissed the suit of the plaintiff.
6. Being aggrieved by the said judgment and decree the plaintiffs filed R.A. No.10/2007 before the first appellate Court. After hearing both sides, the first appellate Court framed the following points for its determination:
POINTS
1. Whether the plaintiffs prove that non-
agricultural proceedings dated 20.11.1999 is null and void?
2. Whether the plaintiffs further prove that they are entitled to possession of the suit property?
3. Whether the impugned judgment and decree required interference of this Court?
4. What order?
It answered point No.1 to 3 in the negative and dismissed the appeal by confirming the judgment and decree of the 10 trial Court. It is against the said judgments and decrees that this second appeal has been filed.
7. I have heard the learned counsel for the appellant and learned counsel for the respondent No.1 and learned Additional Government Advocate for respondent No.2 to 5 and counsel for respondent No.9.
8. It is contended on behalf of the appellant that the Courts below were not right in dismissing the suit of the plaintiffs. The fact that an extent of 1 acre 19 guntas is in the possession of the plaintiffs has not been appreciated by the Courts below. That, an entire extent of 9.02 acres was being cultivated by the plaintiffs as tenants. Subsequently when an application was made for grant of occupancy rights i.e. on the enforcement of the Land Reforms Amendment Act, the Land Tribunal granted occupancy rights of 8 acres 13 guntas only. That order however, did not alter plaintiffs possession with regard to 1 acre 19 guntas which has been continuous. Despite the order of the Land Tribunal, the defendant No.1 had no right, title and interest with regard to 1 acre 19 guntas. Therefore, in order to defend the 11 possession of the plaintiffs that the suit for declaration as well as injunction and in the alternative possession was filed. Without appreciating the case of the plaintiffs, the trial Court as well as the First Appellate Court have dismissed the suit. He therefore contended that substantial question of law arises in this appeal calling for the intervention of this Court.
9. Per contra, learned counsel for respondent No.1 has stated that the plaintiff himself has admitted that out of 9 acres 32 guntas which were apparently in the cultivation of the plaintiff, it was only 8 acres 13 guntas which was the subject matter of the Land Tribunal's order in respect of which the occupancy rights were granted. In fact, after the enforcement of the Amendment Act the lands stood vested with the State Government and the right, title and interest with the plaintiffs was only 8 acres 13 guntas. The order of the Land Tribunal is 12.7.1978. The said order has attained finality since a writ petition filed against the order was dismissed on the ground of delay and latches and affirmed in the Writ Appeal. Therefore, 1 acre 19 guntas does not 12 belong to the plaintiff-appellant. He is not in possession of the said extent. Hence, it is contended that the suit was rightly dismissed and confirmed in appeal which would not call for any intervention in this appeal.
10. Learned AGA for respondent Nos.2 to 5 also supported the judgment and decree of the Courts below by contending that 1 acre 19 guntas of land has stood vested with state Government and that the plaintiff had no right to that extent.
11. Having heard the learned counsel for the parties and on perusal of the material on record, it is not in dispute that the entire extent of 9 acres 32 guntas in Sy.No.35/2 was originally said to be cultivated by the appellants' father. A claim was made in that regard before the Land Tribunal, Jamakhandi, on the enforcement of the Land Reforms Amendment Act. By order dated 12.11.1978, the Land Tribunal granted occupancy rights to an extent of 8 acres 13 guntas only out of 1 acre 19 guntas, in favour of the appellants' father. The bone of contention between the parties is with regard to the extent of land which has not 13 been the subject matter of grant of occupancy rights in favour of the plaintiff/appellant or his father. On the enforcement of the Land Reforms Amendment Act all land held by or in the possession of tenants as on 1.3.1974 has stood vested in the State Government and all right, title and interest in the said land has been extinguished subject to the registration of tenants as occupants under the provision of the Act. It is in this context that an application was made by the appellant's father Basappa Mudhol seeking registration of occupancy rights in respect of 9 acres 32 guntas on the premise that he was in possession of the said extent as a tenant. The Land Tribunal, Jamakhandi however, granted occupancy rights in respect of 8 acres 13 guntas only and not with regard to the balance of 1 acre 19 guntas. The said order was not challenged by Basappa Mudhol - the grantee. It was only later on Ningappa and Mallappa and other two sons of Basappa Mudhol assailed the same in W.P. No.34309/2000. The said writ petition was rejected at the stage of preliminary hearing itself on the ground of delay and latches against which W.A. 14 No.723/2002 was filed before the Division Bench of this Court and by order dated 14.1.2004 (Ex.D11) writ appeal was dismissed. Therefore, the grant of occupancy rights in respect of 8 acres 13 guntas in Sy. No.95/2 has attained finality. When the matter stood thus, the present suit O.S. No.105/1995 was filed by defendant No.1 seeking the relief of permanent injunction. The said suit was decreed as per Ex.D-16. Against which, R.A. No.115/2002 was filed. The said Regular Appeal was also dismissed. Thereafter, O.S. No.5/1996 has been filed by the plaintiffs by Basappa Mudhol seeking the relief of permanent injunction against the State of Karnataka, Deputy Commissioner, Bijapur, Assistant Commissioner, Jamakhandi, Executive Engineer, Jamakhandi and the Superintendent of Engineer, Hidkal. Subsequently, the present suit has been filed seeking the relief of declaration and consequential relief of injunction or in the alternative possession not only against the authorities mentioned in O.S. No.5/1996 but also against defendant No.1 who is the plaintiff in O.S. No.105/1995. The present suit for declaration arose on account of the conversion order 15 that has been in favour of respondent No.1 in respect of 1 acre 19 guntas. The common thread which runs through the previous proceedings as well as the present proceedings is dispute with regard to 1 acre 19 guntas which is the bone of contention between the plaintiffs and defendant No.1. The claim of the plaintiffs with regard to 1 acre 19 guntas is predicated on the fact that the original plaintiff, Basappa Mudhol was the tenant of the said land and in fact occupancy rights in respect of this land along with the land which has been granted by the Land Tribunal totally measuring 9.22 acres was the subject matter of the claim made before the Land Tribunal. There is no other independent claim made with regard to the extent of 1 acre 19 guntas by the plaintiffs. The plaintiffs themselves and not their father Basappa Mudhol who was granted occupancy rights challenged the order of the Land Tribunal dated 12.11.1978 wherein, the extent of occupancy rights was reduced to 8 acres 13 guntas by excluding this 1 acre 19 guntas. They were unsuccessful in the challenge mentioned because of the delay in filing the writ petition and 16 the writ appeal was also dismissed. In the absence of their being any other right, title and interest to 1 acre 19 guntas except the tenancy which has been claimed by the plaintiffs before the Land Tribunal, the same cannot be a subject matter of the suit after the Land Tribunal order's has attained finality. In this context, Section 123 of Karnataka Land Reforms Act, 1961 can be cited. The same reads as follows:
133. Suits, proceedings, etc., involving questions required to be decided by the Tribunal.--
(1) Notwithstanding anything in any law for the time being in force,--
(I) no civil or criminal court or officer or authority shall, in any suit, case or proceedings concerning a land decide the question whether such land is or not agricultural land and whether the person claiming to be in possession is or is not a tenant of the said land from prior to 1st March 1974;
(ii) such Court or officer or Authority shall stay such suit or proceedings in so far as such question is concerned and refer the same to the Tribunal for decision;
(iii) all interim orders issued or made by such Court, officer or Authority, whether in the nature of temporary 17 injunction or appointment of a Receiver or otherwise, concerning the land shall stand dissolved or vacated, as the case may be;
(iv) the Tribunal shall decide the question referred to it under clause (i) and communicate its decision to such Court, officer or Authority. The decision of the Tribunal shall be final.
(2) Nothing in sub-section (1) shall preclude the Civil or Criminal Court or the officer or authority from proceeding with the suit, case or proceedings in respect of any matter other than that referred to in that subsection.
12. Since the right to 1 acre 19 guntas is claimed by the appellants as tenants being in possession of the said land prior to 1.3.1974 and the entire extent of 9 acre 32 guntas having stood vested with the State Government and under Section 44 of the said Act and an extent of 8.13 acres only being granted by the Land Tribunal, which order having attained finality, there cannot be any other agitation by the plaintiff with regard to this 1 acre 19 guntas either against State or against any other third party. When the Land Tribunal reduced the extent of land claimed by the father of the plaintiffs to only 8.13 acres and did not grant 1 acre 19 18 guntas the plaintiffs lost their rights in respect of 1 acre 19 guntas of land. Therefore, the plaintiffs have no right to once again agitate the same with regard to it filing the suit in the garb of assailing an conversion order made by the authorities in favour of defendant No.1 insofar as the said extent is concerned. In fact the plaintiffs who have not been granted occupancy rights in respect of 1 acre 19 guntas of land have no locus standi to challenge an order of conversion of the very same land in favour of Defendant No.1, particularly after being unsuccessful in getting occupancy rights registered in their name before this court in the writ proceedings. Therefore, the suit as well as regular appeal were rightly dismissed. No substantial question of law arises in this appeal. The second appeal is also dismissed.
Parties to bear their respective costs.
Sd/-
JUDGE BS