Karnataka High Court
Hanumappa S/O Somappa Lakkammanavar vs Parvatevva on 5 April, 2011
Author: V.Jagannathan
Bench: V.Jagannathan
IN THE HIGH COURT "O F'-- KA.R'I«;A:T2\I{A#%'I%
CIRCUIT BEN.C'H_, DH"ARAwAI:D'g""" "
Dated the 5"'§1Ry,QfVApri.I'2O:11
' ,'i'j;-I3 E
HON'BLE MR.JUSTiC:EV: f»I.;TJAiC{A'.NNATHAN
REGULAR SECOND' AP1PE_AL'.NQ§'»'1267 / 2005
?ETW
9+ 29> 9» I0
40; O 'SVofrIap'pIa"'LaI1§Ikammanavar,
R / on H.i.r:;§:konatiV, H_'ire'k'eru'r T aluk,
'- Ha.V¢"I?I D'iét'riCt_--'--.581f"'1'1V--1".
'R
3 7* years ,' '
B--a4_saVanneppaV,
35 yearsI {rest ~do-.
'V RAChan'(lr._appa,v
" years;""'est --do--.
.S1_1rC Sh,
rest ----do--.
_'GV':a§'C?$é.€ppa,
41"years, S/0 Holibasappa
Dyavannavar, R/o Hirekonati,
Hirekerur Taluk, Haveri District -- 581 1 11.
...Appe11ants
( By Sri Avinash Banakar, Advocate. )
g N D :
arvatevva,
65 years, W/0 Veerabasappa Madyannavar,
Ix)
R/o Hirekonati, Hirekerur Taluk,
Haveri District ~ 581 111.
( By Sri P.G.Mogali, AdVOC'€tt'C;'i.:)::~.,
Regular Second Appeal
§}'i."Reis'p.or1:lVeiit
the C.P.C. against theii.j[u'dgmentV_ andiv-V_de_:c'1*'eee dated'
23.3.2005 passed in R.A.No?-,3_2/_200.1' file of the
Addl. Civil Judge';_(.S'r.D1.'i.),:. :Ranevb'e.nnur, allowing the
appeal and setting aside decree dated
7.3.2oo11< passed /'e199i4 on the file of the
Civil Judge. (Jr:[)n.*),l:.E1ireke.rui'. 1
This appeal' on hearing this day, the
coujft deliei.Iered'ithe ffo11'ow1n'g":" V
»--gA_"'__t.Jii1i3 G M E N T
"This ..seco'hdl'appeal is by the defendants in the
_ if-5151 E,',E::C\I,1vV"I"t.'.aI1d are aggrieved by the judgment of the
e«tria1vv.c:ou1't.;i'-which was in their favour, being reversed by
the V__1ow;e'riiappellate court by setting aside the trial
AA gcourtfs judgment and decreeing the suit of the plaintiff.
2. Brief facts are that, the plaintiff filed the suit
seeking declaration and permanent injunction in respect
9/.
no
of the suit schedule property measuring 5 acresrand 4
guntas in R.S.No. 95/2 of Hirekonati Village,«i.1fI~i_rel<erur
Taluk. The said prayer in the suit on 'the
plaintiff's stand that the landfiin :s'.gN1o;'9»5?'ywet§omgittaiiy *
measuring 9 acres and ,4 guntas and belozriiged itolfone;
Bisto, s/o Krishna Nadageiraggviand fatherc
in~law was the of the entire
land. The Atplaintiff.'s9:«fathler--in>liaw§_~'purchased some
portion of 'under a registered sale
deed from f3isto, the original land
owr;_:eirHtVoi_A provisions of the Bombay
Tenancyi' 8:, Act, 1934 and sold
sornveggportionlofi the same land to the defendants' grand-
and, whatiilwas sold to the defendants' grand-
of land. Later on, that portion of the
land was mentioned as R.S.No.95/ 1.
" *3,' l"iBased on the aforesaid foundation and also stating
that, as per the resurvey conducted, the plaintiff's land
being shown to be 5 acres and 4 guntas of land, the
plaintiff contended thatxas the defendants were trying
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to encroach upon her land, declarationaandgv hp-ermanent
injunction sought for by her i ' if
4. The defendants contejistegd the._iltakingi
up the stand that the extgentiof land ofiithe plaintiff was
only 4 acres and 2'O__g11ntas :and.__no't,more than that and
moreover, the sale "deed :fa*'Jou'1*i_':o_fi--~ the defendants'
grand~father"w:as hit by of the Bombay
Tenancy. Act and, ~apar=tV.fro--mf&' that, the sale deed of the
plain_tiff's-.,fatli:er-i11i;1~a§vi.'clearly} indicated that what was
sold urldeirivth-e_iiSale«,ide.ed to the plaintiff's father--in--law
was "only 4 acr.e"s, andi*24O4._.guntas of land and not 5 acres
and 4 It was also their contention that,
vb'-§grr:1__ifstal<e,i it'he,__e_xtent of land in respect of R.S.No. 95/1
' _"W.as..,shOwnvas 4 acres and thereafter, a varadi was given
if ' alltldwiatsWalgo1?}?gfc%1ds,ea%f4thEeCEi:§fe€i11Iiiia1n2t%
thatltheiy had sold 2 acres out of R.S.No. 95/1 in favour
of, the sixth defendant. On these grounds, the
defendants sought for dismissal of the suit.
}
aspect and also on the aspect of the suit being barred by
limitation and held that the cause of actiongV.ario»ste'
the year 1994 and the suit was filed
from the date of the said event ';%;n'd,« as._such_; 't_h.e"appleal if.
preferred by the plaintiff was ial.lolW_ed andthe'
decreed declaring the plaintiff to" be: of the
land in R.S.No. 95*/2t me'alsur.ili41gli"5._gacres"'and 4 guntas
and the defendantislby an order of
perpetual the plaintiff
from d». 4
7. of the lower appellate
court; defendlantlsehave come up in this appeal and
Court,"-.atllthe' time of admission, had raised the
.4 '2following'substantial questions of law for consideration:
A the lower appellate court was justified in
llfrelversing the decree of the trial court when the
plaintiff has failed to produce the registered title
deed showing that her father--in--law had
purchased an extexgg/t of 5 acres 4 guntas?
. Z
I
(2) Whether the lower appellate court was'
law in holding that Ex.P--7 would_cvon'fi€fr
plaintiff in respect of theilhsuitdso.hiedu1e._p'ropVerty?i'
8 I have heard learned".cc--unseli".Sl1Fi«. 'AfiziI1ia~sh
Bianakar for the appellants--def_eridants'5and learned.
counsel Shri P.G.Mogali for*tih'e respo-ndent-plaintiff and
perused the I'€Cord§~,,{)f this:_case,:i'ncludingthe reasons
assigned by both theg_cvourt.s_V
9. of learned counsel for the
appellants_i's appellate court committed
an :'erroriA.'judgment of the trial court.
The by the lower appellate court,
acco1'ding "to.__Vithe appellants' counsel, is that, it had
'A the registered sale deed under which the
VAi.l'a'ther-in--law had acquired 4 acres and 20
iguntasiofland and secondly, the lower appellate court
ga\}e.g_ili'undue importance to the resurvey settlement
" report and merely because the resurvey settlement
report had indicated that the extent of land in R.S.No.
T 95/2 is 5 acres and 4 guntas, that cannot undo the
5/'?
submit that, originally, the entire land _
of the plaintiff's father--in--law :'a&nci_"tl*lle plaintiffls:l'i_ifatlier--
in-law became the owner_b'J~z..puric~hasing._v55acre.s--'and'45
guntas of land. But, hovv_e_ver,_ inppt1\'fi-- deed, it was
mentioned as 4 of land. The
plaintiff's father--in--:lawf,_ :l;a_terto_nllltllefiplaintiff, have been
in entire land of 5
acres pand.e.él"--gL_J,ntas the purchase made in the
year" ll9'6.QLj anti;"th'ea"-resurvey settlernent report also
confi'rnis_ this*fact'~i.ntaslmuch as EX.P-7, which is the
resurvey .settle'rn'ent'=--._ of the land revenue, clearly
rnentionsl t'h.at"thel' extent of land in R.S.No. 95/l is 4
«_alcres'i:'and«i_.the eiftent of land in R.S.No. 95/2 is 5 acres
' guntas.
..'_"Iri-addition to the above, the lower appellate court
.. pialsolias taken note of the admissions made by D.Ws.1
_ and 2 and, therefore, when the defendants have
admitted that the plaintiff and the first defendant have
been cultivating their respective lands and the lands are
bifurcated by a bund,;£id the said bund has been in
10
existence since the beginning, taking all
facts into account and the defend;a,,r__yi[:"s'..,,.phairingifnot
challenged the resurvey sett1e;rinentrVeip_ort 'biyipreferriiiig ii.
any appeal, the lower appellate cfourit, therefore,_i"after.a
careful consideration of th_e"~.entire'- evid_en..ce;~._élllowed the
appeal filed by the plaintiff"».by=._§ettin'g.iagsigjib the trial
court's judgment.
13. The ;l'eia1:n.ed reliance on the
decis1o1i}§Viir};"p§£'£ié§'diifi?'i'.*i_<§§5~s-I(2liil§<af.L.J. 19 and ILR 2007
aforesaid submissions
as as of the lower appellate court.
The learned co]un's_el*~*also pointed out that even in the
Adocium--c--n'ts of the defendants, the land held by
' V.iid--efen,dants'---_grand--father has been shown as only 4
the light of the aforesaid submissions put
V forward, the questions of law raised for consideration
are required to be answered and I answer the first
question of law in the affirmative and so also the second
question of law, for the <§<:llowing reasons.
/.
ll
15. It is not in dispute that the land originally
comprised of 9 acres and 4 guntas. It is 'l'al'so an
admitted fact that the plaintiff's father--in--la;w--p'ur_cl5iased
in the year 1960 some portion of the
registered sale deed and though:.i_rifj.th--e the 4'
extent also is shown as 4facres and 22 gfdntas, it is also;
an admitted that the also
purchased some total extent of
land under ,a and what was
was only 4
acres of lan"cl.5.;__ 3 " A
l6\ is lia«riil4"ad,mitted fact by both sides that,
ever_since=theVVpur;:hase of the land as aforesaid, the
pl.laintift"vand thedefendants have been in cultivation and
their respective portions. The resurvey
A8_ettlemeri.--t'iVreport was issued as per Ex.P--7. The said
A dociurrlient Ex.P--7 clearly mentions that in R.S.No. 95/1
" ~belonging to the defendants, the extent of land is 4 acres
and the extent of land in R.S.No. 95/2 (plaintiff's land)
was shown as 5 acres and 4 guntas. This report of the
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1'7
resurvey settlement authority has attained final-itiy_V_and
has not been questioned by the defendantsgat'ainypgiizt
of time. The said report, which was
has held the field for a long pyerioduofiitirnie"--an<:i-.itill:.:the i
filing of the suit. As per -the r'esu'rvey
95/2 comprised of 5 acresiiiiiand guntaisbf It is
admitted by and the
defendants have beenioult.iyiafting:ivth:?jlif--i"Fespective lands
for a tinie the beginning and
there is lands. It also goes to
shoyyii no point of time, have
raised the plaintiff alleging trespass
by the plaintiff i-ntAo_ith'eir land.
Though the learned counsel for the appellants
arguedl that"~the resurvey settlement cannot confer any
i'oi\}lvnersh:ipA,}: in View of the Division Bench ruling of this
court}. in the case of Sri Deuidas Vs. The Deputy
Argifjommissioner, reported in ILR 2007 Karnataka 4457,
wherein this court has held that when the survey
settlement was not questioned, it becomes final and
}
M
would decide the dispute between the partie-_'s';;--i:._"'--l_r1"*_the
instant case also, when EXP-7 had attained'
without the defendants questioningit ~
the extent of land mentioned
R.S.No. 95/2 also is deem:e'd.V_ to hayebeen"iadmitted by
the defendants. Paragrapheff~oif--».,the 'aforesaid Division
Bench ruling requi"rels--.tol_' here and it
reads as under: , . ._ . ..
"7: though the
it the survey was
* 5"' respondent without
'notice to view, atleast when the same_:cam'--e their notice, they should have E__:chVallenged...the same. It is only on failure to c.hall'enge the same, at the time of hearing by A 'li5'al'isildar, it has become final and as the dispute between the parties had " been settled and determined by the "competent authority exercising jurisdiction under sub--section (2) of Section 142, the Tahsildar was justified in taking action. .... .."
18. As far as the title to the property also being gone into is concerned, a DiQ;i_sion bench of this court, in the 'I 14 case of Basappa Kenchappa Melligeri Ayappa Mathapati, reported in 1965(2) held thus: « "From a reading of*Ss.. and Bombay Land Revenute::Code, iit._is"cleai':§ that the Collecto1*'~.__ is .+le'in§;o;uQér¢d decide boundary _ adjoining holders..of la.t1d;.._ j; In 'iwhere the Collefctor,iidetermiines .ith:e'i--i.bo1.1.ndary dispute, heii the title to some iioidithiatii r'eva..soin it cannot be held his to: determine boundary idjsiipiuteis '' l9_._ ltis, V_itheVr.efo'17ei,i"'clear from the aforesaid rulings of thatfin all cases where the Collector athe boundary dispute, he incidentally pdieitermiiineis the title to the property and in View that consequence, it cannot be held that he has no jurisdiction to determine the boundary disputes and that Section N9 of the Bombay Land Revenue Code (Section l42 in respect of the Karnataka Land Revenue Act) becomes irrelevantggr otiose.
--./ / enjoyment of their respective lands since the beginning and a bund is also there for a long time.
22. in the light of the foregoing reasoning?....inoy'flliyijviexzgz, the decision cited by the appellants'_.Coll?1sieil.;' lays down the well settled i the revenue entries cannotconfer title, v»et,:.it has to mentioned that in the 't'heflappellants' counsel, the facts ilmiade by the Assistant Settlement.idirection"iicollection of the record of before the court and, therefo:-re1'i¢.;__it of the passing of the order of -the'5'A--ss'istan_t"Settlement Officer that the court took th'evliew°that not possible to visualize on what baisisttthe direction: had been made. However, in the if the plaintiff has produced EX.P--'7, which admitted by both sides and also has atitainedi finality.
i' For the aforesaid reasons, I do not find any error being committed by the lower appellate court in setting aside the judgment of the trial court and decreeing the } W 1 17 suit of the plaintiff as prayed for. The substantial questions of law raised are answered accordingly,
24. In the result, the appeal lacks dismissed.
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