Karnataka High Court
Smt. Pillamma vs Chikkadalappa S/O Late Sri.Kariyappa on 23 August, 2012
Author: C.R.Kumaraswamy
Bench: C.R. Kumaraswamy
1
IN THE HIGH COURT OF KARNATAKA AT BANGALORE
DATED THIS THE 23RD DAY OF AUGUST, 2012
BEFORE
THE HON'BLE MR. JUSTICE C.R. KUMARASWAMY
REGULAR SECOND APPEAL No.1421/2009 (INJ)
BETWEEN:
1. SMT. PILLAMMA
W/O LATE C. M. NARAYANAPPA
AGE: 64 YEARS
2. SRI. ASWATHA
S/O LATE C. M. NARAYANAPPA
AGE: 42 YEARS
3. SRI. PREMA KUMAR
S/O LATE C. M. NARAYANAPPA
AGE: 39 YEARS
ALL ARE RESIDENTS OF
MALLENAHALLI VILLAGE
CHANNARAYAPATNA HOBLI
DEVANAHALLI TALUK-562 110
...APPELLANTS
(BY SRI. S. W. ARBATTI, ADVOCATE)
AND:
1. SRI. CHIKKADALAPPA
S/O LATE SRI. KARIYAPPA
AGE: 74 YEARS
2
2. SRI. MUNIRAJU
S/O SRI. VENKATARAMANAPPA
AGE: 53 YEARS
BOTH RESIDING AT
MALLENAHALLI VILLAGE
CHANNARAYAPATNA HOBLI
DEVANAHALLI TALUK-562 110
...RESPONDENTS
(BY SRI. SHIVARUDRA, ADVOCATE FOR C/R1)
(R-2 IS SERVED AND UNREPRESENTED)
THIS REGULAR SECOND APPEAL IS FILED U/S
100 OF CPC AGAINST THE JUDGMENT AND DECREE
DATED 24.07.2009 PASSED IN R.A.NO.77/2008 ON
THE FILE OF THE CIVIL JUDGE (SR. DN.) AND JMFC,
DEVANAHALLI, DISMISSING THE APPEAL AND
CONFIRMING THE JUDGMENT AND DECREE DATED
16.07.2008 PASSED IN O.S.NO.385/2005 ON THE FILE
OF THE PRL. CIVIL JUDGE (JR. DN.) & JMFC,
DEVANAHALLI.
THIS RSA IS COMING ON FOR PART HEARD IN
HEARING MATTERS, THIS DAY, THE COURT
DELIVERED THE FOLLOWING:
JUDGMENT
This Regular Second Appeal is filed under Section 100 OF CPC against the judgment and decree dated 24.07.2009 passed in R.A.No.77/2008 on the file of the Civil Judge (Sr. Dn.) and JMFC, Devanahalli, dismissing 3 the appeal and confirming the judgment and decree dated 16.07.2008 passed in O.S.No.385/2005 on the file of the Prl. Civil Judge (Jr. Dn.) & JMFC, Devanahalli.
2. The plaintiff states that he is the absolute owner in possession and enjoyment of land bearing Sy.No.37, New No.37/P-12, measuring 2 acres situated at Mallenahally village, Channarayapatna Hobli, Devanahally Taluk, Bangalore Rural District and the same is described as 'Suit Schedule Property'.
3. The plaintiff states that he has acquired the schedule property, by way of Grant on 12.04.1977 and land was granted by the Tahsildar of Devanahally Taluk. The Saguvali chit dated 15.04.1977 was also issued to him.
4. The plaintiff also states that one C.M. Narayanappa i.e. the husband of defendant No.1 and the father of defendant Nos.2 and 3 have disputed 4 the grant made in favour of the plaintiff in respect of the suit schedule property by filing appeals against the grant made in favour of the plaintiff. The Tahsildar of Devanahally Taluk has confirmed the grant made in favour of the plaintiff in respect of the suit schedule property vide Order dated 23.03.1999 passed in L.N.D. C.R.No.475/1996-97. Though, the grant was made in favour of the plaintiff, the defendants' father was in occupation of the suit schedule property. Survey sketch was prepared by the Surveyor as per the directions of the Tahsildar, in the proceedings L.N.D. C.R.475/1996- 97 and the suit schedule property was demarked as 'A' property in the sketch. The said sketch is also produced and the order passed by the Tahsildar, Devanahally in L.N.D. C.R.475/1996-97 is also produced. As per Orders of the Tahsildar, the illegal occupation of the suit schedule property by C.M.Narayanappa, the husband and father of defendant Nos.1 to 3 respectively was redelivered to the plaintiff vide Order dated 23.03.1999 in L.N.D. C.R.475/1996- 5
97. A Mahazar was drawn to that effect by the Deputy Tahsildar of Channarayapatna Hobli, Devanahally Taluk dated 17.06.1999. Subsequently, the Revenue authorities have mutated the name of the plaintiff as Khathadar of the suit schedule property vide M.R.No.1/99-2000. From the date of restoring the possession of the suit schedule property to the plaintiff, the plaintiff is in absolute possession and enjoyment of the suit schedule property.
5. The plaintiff states that Late.C.M. Narayanappa, during his life time had preferred an appeal before the Assistant Commissioner, Doddaballapur Sub Division in RUC, (A) 10/99-2000, against the order dated 23.03.1999 passed by the Tahsildar of Devanahally in L.N.D. C.R.475/1996-97. The said appeal came to be dismissed and the grant made in favour of the plaintiff was confirmed. Thereafter, C.M.Narayanappa had preferred an appeal before the Deputy Commissioner against the Order of 6 the Assistant Commissioner. Even, the Deputy Commissioner dismissed the appeal and the order of the Assistant Commissioner was confirmed.
6. The plaintiff states that defendant Nos.1 to 3 have no manner of any right, title and interest much less possession over the suit schedule property. The defendant on 15.09.2005 attempted to destroy the standing RAGI crops over the schedule property to cause wrongful loss to the plaintiff. The plaintiff states that the defendants are influential and financially sound persons. The plaintiff is aged about 76 years.
7. The cause of action for the suit arose on 15.09.2005 when the defendants have made illegal attempt to destroy the standing RAGI crops on the schedule property.
8. The defendant Nos. 1 to 3 appeared through their counsel in the trial Court. The defendant No.4 have placed exparte.
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9. The defendant No.3 has filed the written statement as under:-
It is true that 2.00 acres of land in Sy.No.37 of Mallenahalli village was granted to the plaintiff by the Tahsildar, Devanahalli, but the boundaries given in the plaint schedule are incorrect. The plaintiff is not in possession of the schedule property. The grant made in favour of the plaintiff was challenged and the matter was remanded to the Tahsildar after the grant orders were set-aside. It is true that the Tahsildar confirmed the grant made in favour of the plaintiff. The sketch prepared by the surveyor is not in accordance with the factual situation on the spot. The sketch is prepared to suit the convenience of the plaintiff. The plaintiff having lost his possession of the property, he could recover the possession through Revenue authorities. He has recovered the possession through the Civil Court. It is true that Late C.M.Narayanappa had preferred an appeal in R.U.C.No.10/1999-2000 challenging the order 8 of grant made in favour of the plaintiff and others and the said appeal was dismissed. The Deputy Commissioner has confirmed the grant made in favour of the plaintiff.
10. The defendants do not dispute the grant of 2.00 acres of land in Sy.No.37 in favour of the plaintiff, but Sy.No.37 of Mallenahalli Village, which totally measures about 107 acres 17 guntas and the defendants do not know where 2.00 acres of land granted to the plaintiff is situated. The plaintiff has given the boundaries claiming 2.00 acres of land in Sy.No.37 which earlier granted to one Munishami Boyi @ Era Boyi, S/o Venkata Boyi. The said property was later purchased by one Muniyappa. The said Muniyappa in turn sold 1.00 acre out of the said property in favour of one M.Anjinappa, S/o Chikkamachappa. The said M. Anjinappa and Late.C.M.Narayanappa constituted a joint family and in the oral family partition took place in the year 1981, the 9 said property was allotted to the share of Late.C.M.Naryanappa. After the death of C.M.Narayanappa, the defendants herein have been in continuous possession and enjoyment of the said 1.00 acre land granted to Eraboyi @ Munishamiboyi was sold by him in favour of one Bushappa. The said Bushapppa in turn sold the said 1.00 acre in favour of Muniyappa. The plaintiff is not in possession of 2.00 acres of land.
11. The plaintiff was earlier claiming 2.00 acres of land purchased by the first defendant's husband C.M.Narayanappa from one Venkatappa, which lies to the east of suit schedule property as belonging to him and tried to interfere with the possession of the said C.M.Narayanappa. At that time, the said C.M.Narayanappa filed a suit for declaration and permanent injunction in O.S.No.163/1984. In the said suit, the plaintiff herein contended that he was granted the land described in plaint schedule of 10 O.S.No.163/1984. After trial, the suit decreed. Against the said judgment and decree, the plaintiff herein filed an appeal before the Court of I Addl. Civil Judge (Sr.Dn.), Bangalore in R.A.No.5/1990. The first Appellate Court was pleased to allow the appeal in part by granting permanent injunction, but the relief of declaration was refused by a judgment and decree. Against the said judgment and decree, the first defendant's husband filed R.S.A.No.1058/1995. The said appeal was allowed declaring that the first defendant's husband was the absolute owner of the suit schedule property.
12. The Trial Court has raised the following issues as arising from the pleadings:-
1. Whether the plaintiff proves his peaceful possession and enjoyment of the suit property?
2. Whether the plaintiff proves that the defendants are trying to interfere with his 11 peaceful possession and enjoyment of the suit property?
3. Whether the plaintiff is entitled for the relief claimed in the above suit?
4. What order or decree?
13. During the hearing, the plaintiff himself examined as PW1 and one independent witness was examined as PW2 and got marked as Ex.P1 to P12. The defendant No.3 was examined as DW1 and three independent witness was examined as DW2 to DW4 and got marked as Ex.D1 to D10.
14. The Trial Court has observed that the Tahsildar has no authority to evict C.M.Narayanappa from the suit schedule property. It is pertinent to note that whatever the order passed by the Tahsildar was challenged by C.M.Narayanappa upto the Deputy Commissioner. He has not challenged the order passed by the Deputy Commissioner. So, the order passed by the Deputy Commissioner has attained finality. The 12 Tahsildar is the granting authority under the Land Grant Rules, he has got power to locate the property granted to the grantee and he has got power to cancel the grant. He has got power to evict any person from the unauthorised occupation of the land granted to the grantee. Till today, the order passed by Tahsildar, Assistant Commissioner and the Deputy Commissioner are not set-aside. The defendants have admitted the grant made in favour of the plaintiff. The defendants have disputed only the boundaries. From the evidence of D.W.4 - Muniyappa, it is clear that the suit property is situated in between the property of Devanayakanahally Muniyappa and the property purchased by Muniyappa, S/o Krishnappa, later purchased by M. Anjinappa. The 'B' suit schedule property as shown in Ex.P.2 measuring 6 acres. The defendant Nos.1 to 3 are able to produce the documents pertaining to only 3 acres of land. 2 acres of land involved in O.S.No.163/1984 and 1 acre came to be allotted in favour of C.M.Narayanappa in partition as 13 alleged by them. It is in unauthorised occupation of the defendant Nos.1 to 3. Now, disputing the location of the plaintiff's land, the defendant Nos.1 to 3 are trying to grab plaintiff's 2 acres of land in Sy.No.37.
15. The Trial Court at para 18 have mentioned that P.W.2 - Muninanjappa has deposed that the plaintiff is in possession of the suit property. No suggestion was put to P.W.2 that the plaintiff is not in possession of the suit schedule property. The defendants have not contended that they are in actual possession of the suit schedule property and cultivating suit schedule property. Therefore, on the basis of evidence of P.W.2 and D.W.4 and on the basis of grant order, sketch, mahazar, RTC and the order passed by the Revenue authorities, the plaintiff has proved his possession and enjoyment of the suit schedule property and the plaintiff has proved the boundaries of suit schedule property. The plaintiff has also established his possession and enjoyment of the suit schedule property. 14 The contention of defendant Nos.1 to 3 itself shows that they are interfering with the plaintiff's possession and enjoyment of the suit schedule property. Therefore, the suit of the plaintiff was decreed granting permanent prohibitory injunction restraining the defendants from interfering with the peaceful possession and enjoyment of the suit schedule property. Feeling aggrieved by the same, the defendant Nos.1 to 3 have preferred the Regular Appeal in R.A.No.77/2008 before the Court of Civil Judge (Sr.Dn.) & JMFC, Devanahalli.
16. The learned Civil Judge in the course of his judgment has raised the following points as arising for his consideration:-
1. Whether the trial court erred in holding that, the plaintiff is in lawful possession and enjoyment of the schedule property and alleged interference of the defendants?
2. Whether the trial court erred in holding that, the respondent no.1 is entitled for decree for 15 permanent injunction against the appellants and respondent no.2?
3. Whether the judgment and decree of the trial court is opposed to law, facts and circumstances of the case and is liable to interfere by this court?
4. What order?
The Lower Appellate Court has answered the point Nos.1 to 3 in the negative and point No.4 as final order.
17. The Lower Appellate Court in its judgment at para 33 has mentioned by going through the cross- examination of D.W.1, it is not in dispute, the total Sy.No.37 of Mallenahalli measures 100 acres 7 guntas and out of it, 2 acres of land granted in favour of plaintiff. It is his definite stand that, his father was having 10 acres of land in Sy.No.37 and he know the boundaries of the said extent. According to him, towards East - road, towards West - Devanayakanahalli Muniyappa, towards North - Gomal land, towards 16 South - Jonnenahalli and Devanayakanahalli road. But, to corroborate this fact, he has not made available documentary evidence. It is also an admitted fact, none of the extent in Sy.No.37 was granted in favour of C.M.Narayanappa. Whatever, he has acquired, it is only either by purchase or by allotment of share in the family partition. But, no such document is placed except the production of Ex.D.1 to 3. But, the said documents give title to C.M.Narayanappa only in respect of 1 acre of land. The defendant Nos.1 and 3 have not made available R.T.C. Extracts to show, as on the date of filing suit, their names finds both at column no.9 and
12. This shows, as on the date of filing the suit, the plaintiff was in possession and enjoyment of said property.
18. The Lower Appellate Court relying on the admission of D.W.1 unequivocally points at no point of time, either C.M.Narayanappa or the defendant Nos.1 to 3 are in possession and enjoyment of the suit schedule 17 property. D.W.1 has also admitted that he has not preferred any appeal. The redelivery of possession of the suit schedule property in favour of the plaintiff remains unchallenged. D.W.1 admits that as per Ex.P.2-Survey Sketch that he is in possession marked portion of the 'B' schedule property. It is also his evidence that he is in possession and enjoyment of 'A' schedule property. But, he has not made available corroborative and cogent R.T.C. Extracts to show either in 'B' schedule property or in the 'A' schedule property he is in possession. Non-production of material revenue documents with regard to the possession of the schedule property it is absolutely fatal to the case of the defendants.
19. The Lower Appellate Court at para 37 has observed that, the defendant Nos.1 to 3 have not placed any revenue documents to establish, they are in possession and enjoyment of the schedule property. On the other hand, Ex.P.2 and Ex.P.3 clearly establishes, 18 the plaintiff is in possession and enjoyment of the schedule property as on the date of filing suit. The plaintiff also established by producing original grant certificate to show that he is the owner of 2 acres of land granted in the year 1976-77.
20. The Lower Appellate Court has observed that taking into consideration of the entire material evidence on record that there is no impediments in arriving into conclusion that, the Trial court has considered the entire materials on record and even after reappreciating the same, in the light of the arguments addressed, the Lower Appellate Court find that, the conclusion arrived at by the trial court cannot be said to be either illegal or perverse. The Trial Court has considered all these aspects in a proper and perspective manner. Even, on reappreciation, the Lower Appellate Court did not find the trial court has misappreciated the defence taken by defendant Nos.1 to 3. The Trial Court has appreciated the facts that the schedule property was granted in 19 favour of the plaintiff and redelivered the possession as per Ex.P.2 and Ex.P.3. Therefore, the Lower Appellate Court dismissed the appeal and the judgment of the Trial Court was confirmed. Feeling aggrieved by the same, the defendant Nos.1 to 3 have preferred this Regular Second Appeal.
21. I have heard the learned counsel for appellants as well as the learned counsel for respondents. I have perused the records of the Trial Court as well as the Lower Appellate Court.
22. In this second appeal, the question that arises for the consideration of this Court is as under:-
1. Whether the appreciation of evidence by the Trial Court and re-appreciation of evidence by the Appellate Court is perverse when the identity of the land granted to the parties is in dispute?20
2. When a dispute is in regard to the identity of the land granted to each of them, a suit for bare injunction is maintainable without seeking declaration of title?
23. The learned counsel for the appellants submits as under:-
The Trial Court as well as the Lower Appellate Court has failed to appreciate the evidence placed on record in proper perspective. The finding of the Court below that the order dated 11.12.2000 has become final is erroneous. The Deputy Commissioner has remanded the matter and the matter is still pending. It is the contention of the learned counsel for the appellants that on relying on the sketch prepared by the Surveyor - Ex.P.2 is not admissible since, it is hit by Section 83 of the Indian Evidence Act, 1872. He further submits that the author of the sketch has not been examined to prove the accuracy of the sketch drawn by him. It is also contended by the learned counsel for the 21 appellants that the property redelivered to the possession of the plaintiff is not the suit schedule property as per Ex.P.9. The eviction by the Revenue authorities is without jurisdiction.
24. The learned counsel for the appellants relied on the following rulings:-
- RANGANATH RAMCHANDRA SURYAVANSHI v. MOHAN & ORS. reported in 2008(5) AIR KAR R 369:
Evidence Act(1 of 1872), S.83 - Presumption as to maps or plans made by authority of Government - Onus of proving such map as accurate lies on party who wants to rely on said map or plan - It has to be proved that said map or plan or survey report, case, is accurate by examining person who actually prepared it - Reason for report being insisted upon as accurate is to overcome instances where apart from playing fraud, there is a tendency to exaggerate, while preparing maps or survey reports - Said infirmity or defect can be overcome only by offering maker of survey report come 22 before Court and testify with regard to accuracy of report.
- THE DEPUTY CONSERVATOR OF FOREST, CHICKMAGALUR DIVISION AND ANOTHER v.
T.K.THAMMANNA GOWDA AND OTHERS reported in ILR 2011 KAR 480:
This Court held that, since the plaintiff has failed to establish that according to Saguvali Chit, he was delivered with the property and he continued to hold and enjoy the same lawfully, he has been rightly denied the relief of permanent injunction. The plaintiff has failed to prove that he is the absolute owner of the property and that he is in actual possession and enjoyment of the same and that the defendants obstructed his possession and enjoyment of suit property - On facts, held, the Trial Court has committed error in declaring the plaintiff to be the owner of three acres of land based on saguvali chit and in directing him to approach the authority which granted the land to locate the extent of three acres.23
- SMT. ASHA CHAKKO AND OTHERS v. STATE OF KARNATAKA AND ANOTHER reported in 2009(4) KAR.L.J.139:
KARNATAKA LAND REVENUE ACT, 1964, Section 67 - Constitution of India, Article 226 - Property under occupation of person claiming title - Claim by or on behalf of Government in respect of - Jurisdiction of Deputy Commissioner to enquire into and pass order deciding claim - Where complicated questions of title arise which can be decided only by Competent Civil Court in appropriate proceedings, Deputy Commissioner has no jurisdiction to initiate enquiry and decide case - Where authority acts without jurisdiction, person aggrieved by such acts, can invoke writ jurisdiction, notwithstanding remedy of appeal/revision provided in Act.
25. The learned counsel for the respondents submits as under:-
24
There is a concurrent finding that both Court have properly appreciated the evidence and arrived at a proper conclusion. He further submits that the evidence of defendant Nos.2 and 4 put-forth by them clearly demonstrates that the suit schedule properties, boundaries are correct. The boundaries mentioned in the plaint and the evidence of D.W.2 and 4 are tallied.
26. The appellants have not produced any evidence to show that they are in possession of 'A' schedule property or 'B' schedule property. The appellants have not produced any documentary evidence namely, RTC, Khata, Pahani to show that they are in possession of the suit schedule property namely, 'A' schedule property of the sketch - Ex.P.2. The defendants have not adduced any evidence to show that they are in possession and enjoyment of the suit schedule property. On the other hand, the plaintiff has produced all the documentary evidence namely, grant 25 certificate, RTC Extracts, Pahani and also the sketch of the Surveyor to establish the case.
27. The learned counsel for the appellants submits that the maps made for any particular case must be proved to be accurate. This can be done by examining the person, who has actually prepared the same. Any defect or infirmity can overcome by proving before the Court by the maker of map. Though, this contention was urged by the learned counsel for the appellants except taking up the contention that the identity of the property is not proper, the party on whom the ownership proof lies himself in order to succeed prima facie case. In the instant case, the plaintiff has produced Ex.P.2. It is the contention of the learned counsel for the appellants that the map prepared by the Taluk Surveyor is accurate. But, no steps have been taken by both the parties to summon, to examine on this aspect. Besides, the plaintiff's case is that the land in question was granted to him by the Tahsildar and he 26 is in possession of the suit schedule property since the Tahsildar put him in possession. This fact has not been disputed by the defendants. As stated earlier, this is a suit for grant of permanent injunction. The Trial Court as well as the Lower Appellate Court is not required to decide the point pertaining to ownership or the boundaries of the land in question by the Tahsildar. The Trial Court as well as the Lower Appellate Court has to ascertain whether there was existence of a right in favour of the plaintiff and whether there was any threatened violation or threatened commission of an act to injure the plaintiff's right which was granted by the Tahsildar by way of a grant. Till today, the grant made in favour of the plaintiff has not been set-aside by the Competent Authority. Therefore, the plaintiff has got a right over the property even he was put in possession of the land in question. It is also the case of the plaintiff that the plaintiff is growing RAGI crop in the suit schedule property. On the other hand, in the instant case, there is a grant made in favour of the plaintiff, 27 which strengthens the case of the plaintiff that he has got some right over the suit schedule property. This aspect was considered by both the Trial Court and the Lower Appellate Court. The parties have contended that the suit schedule properties, boundaries are not correct and identity of the suit schedule land is also incorrect. Though, the defendants have taken this contention in the Trial Court as well as in the Lower Appellate Court, there is no positive evidence to the effect that the boundaries are not carried out and the property in question which was delivered is in favour of the plaintiff was not the suit schedule property. Except contentding that there is no acceptable evidence placed on record to point out that the suit schedule property, boundaries are incorrect which was delivered in favour of the plaintiff by the Revenue authorities.
28. One of the contentions urged by the learned counsel for the appellants is that the Tahsildar has no jurisdiction to put the plaintiff in possession of the suit 28 schedule property. The land in question is a Gomal land. The land belongs to the Government. The Government normally grants land in favour of the land less people. The plaintiff is the land less agricultural labour. Therefore, the Revenue authorities have considered the request of plaintiff's and granted land in question in favour of the plaintiff.
29. The ruling cited by the learned counsel for the appellants in ASHA CHAKKO AND OTHERS v. STATE OF KARNATAKA AND ANOTHER reported in 2009(4) KAR.L.J. 139.
A portion of land consisting of garden measuring 24 acres 12 guntas was owned by one Sri Lancelot Ricketts and was sold by him under a registered deed of conveyance, dated 25.8.1900, for a sum of Rs.60,000/- in favour of Dewan of Mysore which was said to be a purchase by him on behalf of the Princess Jayalakshmammanni Avaru of Mysore. The ruling cited by the learned counsel for the appellants submits that 29 Section 67(2) does not provide an order of eviction being passed. The facts mentioned in this ruling is quite distinguishable. In the instant case, the land is gomal land whereas the ruling cited is the private land belonging to erstwhile Dewan of Mysore. Therefore, the ruling cited by the learned counsel for the appellants i.e. 2009(4) KAR.L.J. 139 is not apposite to the facts and circumstances of the present case.
30. The Trial Court has carefully perused the evidence placed on record. In my view, there is no perversity while perusing the evidence placed on record. There is no hard and fast rule that the suit for injunction to claim the relief of injunction that declaration has to be sought. It all depends upon the facts and circumstances of each case. Therefore, I answered the point No.1 i.e. that the Trial Court and the Lower Appellate Court has appreciated the evidence placed on record in proper perspective and I also hold that injunction suit is maintainable even in the absence 30 of the relief for seeking declaration. In this case, the Trial Court has decreed the suit and the Lower Appellate Court has agreed with the findings recorded. There is a concurrent finding. In that view of the matter, no ground is made out to interfere with the impugned judgment of the Courts below.
31. In the result, I pass the following order:
This Regular Second Appeal is dismissed.
SD/-
JUDGE LB