Karnataka High Court
Sri. Chinnaswamy vs Jogegowda on 7 February, 2020
Author: Nataraj Rangaswamy
Bench: Nataraj Rangaswamy
1
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 7TH DAY OF FEBRUARY 2020
BEFORE
THE HON'BLE MR.JUSTICE NATARAJ RANGASWAMY
REGULAR SECOND APPEAL NO.1209 OF 2012 (INJ)
BETWEEN:
SRI. CHINNASWAMY
S/O RAMEGOWDA,
AGED ABOUT 36 YEARS,
R/O YALEGOWDANAHUNDI VILLAGE,
KASABA HOBLI,
T.NARASIPURA TALUK-571124.
....APPELLANT
(BY SRI. M.V.HIREMATH AND SRI. SHIVANANDA D.S.,
ADVOCATE)
AND:
1. JOGEGOWDA
S/O DODDEGOWDA,
AGED ABOUT 74 YEARS,
R/O YALEGOWDANAHUNDI VILLAGE,
KASABA HOBLI,
T.NARASIPURA TALUK-571124.
2. MANGALAMMA
D/O RAMEGWODA
AGED ABOUT 42 YEARS
R/O YALEGOWDANAHUNDI VILLAGE
KASABA HOBLI,
T.NARASIPURA TALUK-571124.
...RESPONDENTS
2
(BY SRI. D.S.HOSMATH, ADVOCATE FOR RESPONDENT
NO.1,
RESPONDENT NO.2 - SERVED)
THIS REGULAR SECOND APPEAL IS FILED UNDER
SECTION 100 OF THE CIVIL PROCEDURE CODE AGAINST
THE JUDGMENT AND DECREE DATED 28.02.2012 PASSED
IN R.A. NO.5/2008 ON THE FILE OF SENIOR CIVIL JUDGE
AND JMFC, T.NARASIPURA, ALLOWING THE APPEAL AND
SETTING ASIDE THE JUDGMENT AND DECREE DATED
13.02.2008 PASSED IN O.S. NO.91/1997 ON THE FILE OF
CIVIL JUDGE (JR.DN.), T. NARASIPURA.
THIS REGULAR SECOND APPEAL COMING ON FOR
HEARING THIS DAY, THE COURT DELIVERED THE
FOLLOWING:
JUDGMENT
This Regular Second Appeal is filed by the defendant No.3 in O.S. No.91/1997 challenging the Judgment and Decree dated 28.02.2012 passed by the First Appellate Court (Court of Senior Civil Judge and JMFC., at T. Narasipura,) in R.A. No.5/2008 whereby the First Appellate Court reversed the Judgment and Decree dated 13.02.2008 passed by the Court of Civil Judge (Jr.Dn.), T. Narasipura, in O.S. No.91/1997 and consequently, 3 decreed the suit filed by the plaintiff for perpetual injunction.
2. For the sake of convenience, the parties in this Judgment are henceforth referred to as they were arrayed before the Trial Court. The appellant was defendant No.3 and respondent Nos.1 and 2 were plaintiff and defendant No.2 respectively before the Trial Court.
3. The plaintiff filed the present suit for perpetual injunction contending that Sy. No.75 of Pattehundi village, kasaba hobli, T. Narasipura Taluk, was a land reserved for grazing and that he was in cultivation of a portion of the land as an unauthorized cultivator. The plaintiff is said to have filed an application before the Committee constituted for regularization of unauthorized cultivation. The defendants attempted to interfere with the possession of the plaintiff and therefore, the plaintiff was constrained to approach the Deputy Commissioner, Mysore, seeking protection and that the Deputy Commissioner forwarded his application to the Tahasildar, T. Narasipura, to take 4 necessary action. The Tahasildar after considering the application, directed the concerned Inspector of Police, T. Narasipura to give necessary protection to the plaintiff. The Inspector of Police had provided protection to the plaintiff until the decision of the Darkhast Committee on the application filed by him for regularization. The plaintiff claimed that the defendants were interfering with his possession and thus, filed a suit for perpetual injunction.
4. The defendant Nos.1 and 2 contended that the plaintiff is a rich landlord and had more than 30 Acres land of his own. They claimed that the plaintiff was never in possession or cultivation of the land in question. They also contended that the property lying within the boundaries mentioned in the suit schedule was in their possession and enjoyment for more than 12 years. They accused the plaintiff of attempting to grab the land which was in possession of the defendants. Thus, they sought for dismissal of the suit.
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5. Based on the aforesaid rival contentions of the parties, the Trial Court framed the following issues:
"1. Whether the plaintiff proves that he is in lawful possession of the suit property ?
2. Whether he further proves the interference as averred in the plaint by the defendants ?
3. Whether the defendants prove that they are in possession and enjoyment of suit property for the last 12 years as contended in their written statement ?
4. To what relief the parties are entitled ?"
6. The plaintiff was examined as PW.1 and two other witnesses were examined as PWs.2 and 3. Exs.P1 and P2 were marked. Defendant Nos.3 and 2 were examined as DWs.1 and 2. The Trial Court noticed the fact that Ex.P1 discloses the name of the plaintiff to an extent of 01 Acre 20 guntas. The name of the plaintiff appeared in column No.12 of the RTC extract as a person cultivating 6 the property and the crop grown in the property was shown as Ragi. Ex.P2 was the endorsement issued by the Tahasildar, T. Narasipura Taluk, intimating the plaintiff that the concerned Police were instructed to protect the possession of the plaintiff until decision was taken on the application filed by him for regularization. The Trial Court noticed Ex.D10 which indicated that the claim of the plaintiff was rejected by the Committee constituted for regularization of unauthorized cultivation. The Trial Court took cognizance of the fact that a mere endorsement issued by the Tahasildar for providing protection to the possession of the plaintiff would not be sufficient to hold that the plaintiff is in possession of the suit schedule property and that the defendants are interfering with the possession of the plaintiff. The Trial Court, therefore, dismissed the suit in terms of its Judgment and Decree dated 13.02.2008.
7. The plaintiff thereafter challenged the aforesaid Judgment and Decree of the Trial Court before the First 7 Appellate Court in R.A. No.5/2008. The First Appellate Court took into account Section 39 of the Karnataka Land Revenue Act, 1964, which set out the manner of evicting a person in unlawful possession of the property belonging to the Government. The First Appellate Court held that as no eviction proceedings were initiated against the plaintiff, forcible dispossession of the plaintiff from the suit schedule property is impermissible. The First Appellate Court also did not attach much credence to Ex.D10 since the same was brought out subsequent to the filing of the suit. The First Appellate Court further held that on the rejection of the application, the plaintiff became an unauthorized occupant and was therefore, in settled possession. The First Appellate Court also noticed the evidence of PWs.2 and 3 and held that the plaintiff was in possession of the suit schedule property. At para No.24 of the Judgment of the First Appellate Court, the Court has held as follows:
"On careful perusal of the entire evidence on record and materials before this Court, this Court is of the opinion that the discussion of ownership at this juncture 8 appears to be immaterial as the present suit is for bare injunction".
8. Thus the First Appellate Court held that the continued contest of the suit by the defendants amounted to an interference with the possession of the plaintiff and therefore, decreed the suit in terms of the Judgment and Decree dated 28.02.2012. Defendant No.3 being aggrieved by the Judgment and Decree of the First Appellate Court has filed this Regular Second Appeal.
9. Appeal was admitted on 10.01.2020 to consider the following substantial questions of law:
"(i) Whether the Lower Appellate Court was justified in decreeing the suit for injunction, notwithstanding the application filed by the plaintiff being rejected by the committee constituted for regularization of unauthorized cultivation as per Ex.D10 ?
(ii) Whether the Lower Appellate Court was justified in reversing the judgment and decree of the Trial Court ?"
10. Heard the learned counsel for the appellant and learned counsel for respondent No.1. Respondent No.2 9 though served with notice has remained unrepresented. Perused the records of the Trial Court and the First Appellate Court including the impugned Judgments and Decrees and the grounds urged in the appeal memo.
11. Admittedly, the defendants have no right, title or interest in the suit schedule property and the defendants do not seriously claim that they are in possession of the suit schedule property. Ex.P1, which is the RTC extract indicates that for the year 1992-93, the plaintiff and 14 others were in cultivation of a portion of the land in Sy. No.75 of Pattehundi village. The said entry in the revenue records is continued till the year 1995-96. Column No.9 discloses that the plaintiff and others have cultivated the land for Ragi. Ex.P2 is an endorsement issued by Tahasildar, T. Narasipura Taluk, to the plaintiff intimating that the concerned Police were instructed to provide protection to the possession of the plaintiff until decision was taken on his application by the Darkhast committee. It is no doubt true that defendant No.1 has 10 placed on record Ex.D10 - order dated 13.09.2002 passed by the Committee for Regularization of Unauthorized Cultivation of land, which discloses that the plaintiff's application for regularization was rejected. However, such rejection would not ipso facto result in the plaintiff being dispossessed from the suit schedule property. In the absence of any serious claim by the defendants to the suit property, the defendants could not have resisted the suit for injunction.
12. In view of the above, the substantial questions of law framed by this Court are answered in the affirmative and I hold that the impugned Judgment and Decree passed by the First Appellate Court is justified and does not call for interference in this appeal.
Accordingly, this Regular Second Appeal is bereft of merits and same is dismissed.
Sd/-
JUDGE sma