Karnataka High Court
Hanmantappa S/O Sharnappa Gangashree ... vs Prabhakar S/O Gundappa Atnoor And Ors on 5 December, 2023
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NC: 2023:KHC-K:9004
RSA No. 7271 of 2012
IN THE HIGH COURT OF KARNATAKA
KALABURAGI BENCH
DATED THIS THE 5TH DAY OF DECEMBER, 2023
BEFORE
THE HON'BLE MRS JUSTICE M G UMA
REGULAR SECOND APPEAL NO.7271 OF 2012 (DEC/INJ)
BETWEEN:
1. HANMANTAPPA
S/O SHARNAPPA GANGASHREE,
AGED: 54 YEARS, OCC: BUSINESS,
CTS NO. 402, OPP: CENTRAL WAREHOUSE
CORPORATION, NEHRU GUNJ,
GULBARGA-585104.
2. VEERUPAKSHAPPA
S/O SHARNAPPA GANGASHREE
AGED: 51 YEARS, OCC: BUSINESS,
CTS NO.402, OPP: CENTRAL WARE HOUSE
CORPORATION, NEHRU GUNJ,
GULBARGA-585104.
Digitally signed
by SWETA ...APPELLANTS
KULKARNI (BY SMT. HEMA L KULAKARNI, AND
Location: HIGH
COURT OF SRI MANJUNATH GINNI, ADVOCATES)
KARNATAKA
AND:
1. PRABHAKAR
S/O GUNDAPPA ATNOOR
AGED: 66 YEARS, OCC: BUSINESS,
R/O: H.NO.71101/38/E/2, BANK COLONY,
NEHARU GUNJ, GULBARGA-585104.
2. THE COMMISSIONER,
CORPORATION OF GULBARGA
GULBARGA-585102.
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NC: 2023:KHC-K:9004
RSA No. 7271 of 2012
3. THE CITY SURVEY OFFICER,
ASST. DIRECTOR OF LAND RECORDS,
OFFICE OF CITY SURVEY,
GULBARGA-585102.
...RESPONDENTS
(BY SRI PRAMOD N. KATHAVI, SR. COUNSEL FOR
SRI BIRADAR SADANAND MALLANGOUDA,
SRI ANIL S. JOLDAPAGI, SRI BHAVIMANI APPARAYA AND
SRI SANTOSH A. ADVS. FOR R1;
SRI D.P. AMBEKAR, ADV. FOR R2;
SRI RAJKUMAR A. KORWAR, HCGP FOR R3)
THIS REGULAR SECOND APPEAL IS FILED U/S. 100 OF
CPC, PRAYING TO SET ASIDE THE JUDGMENT AND DECREE
PASSED IN R.A.NO. 97 OF 2010, DATED: 19.04.2012 ON THE
FILE OF PRL. CIVIL JUDGE (SR.DN.) AT GULBARGA
CONFIRMING THE JUDGMENT AND DECREE PASSED BY THE
TRIAL COURT IN O.S. NO. 293 OF 2006 ON DATED:
13.07.2010 ON THE FILE OF I ADDL. CIVIL JUDGE (JR.DN.) AT
GULBARGA TO MEET THE ENDS OF JUSTICE WITH COSTS.
THIS APPEAL, COMING ON FOR FINAL HEARING, THIS
DAY, THE COURT DELIVERED THE FOLLOWING:
JUDGMENT
Defendant Nos.1 and 2 in O.S.No.293/2006 on the file of the learned I Additional Civil Judge (Jr.Dn.), Gulbarga (hereinafter referred to as 'the trial Court' for brevity), are impugning the judgment and decree dated 19.04.2012 passed in R.A.No.97/2010 on the file of the learned Principal Senior Civil Judge, Gulbarga, (hereinafter referred to as 'the First Appellate Court' for brevity), allowing the appeal and setting aside the judgment and decree dated 13.07.2010 passed by -3- NC: 2023:KHC-K:9004 RSA No. 7271 of 2012 the trial Court and decreeing the suit of the plaintiff, declaring that assignment of CTS No.403/1 and treating it as government lane is illegal, unauthorized and restraining defendant Nos.1 and 2 from opening the doors or windows in CTS No.403, situated in Vakkalgera Village, Nehru Gunj, Gulbarga.
2. For the sake of convenience, the parties shall be referred to as per their rank and status before the Trial Court.
3. Brief facts of the case are that, the plaintiff filed the suit O.S.No.293/2006 against defendant Nos.1 to 4 seeking declaration that assignment of CTS No.403/1 out of the property belonging to the plaintiff, measuring 4.5 mts X 99 mts and treating it as government lane is illegal and unauthorized and also for permanent injunction restraining defendant Nos.1 and 2 from opening the doors or windows in the property of the plaintiff i.e., CTS No.403, sheet No.8, block No.2, measuring 1766.5 sq.mt. in Sy.No.9 of Vakkalgera Nehru Gunj, Gulbarga with the boundaries mentioned therein (hereinafter referred to as 'suit property' for brevity).
4. It is contended by the plaintiff that originally the suit property was belonging to Qazi Yusufuddin S/o. Qazi Mohd. -4-
NC: 2023:KHC-K:9004 RSA No. 7271 of 2012 Walluddin who was inamdhar of the land bearing Sy.No.9 of Vakkalgera village. Said Qazi Yusufuddin executed a permanent lease deed in the year 1340 fasli in favour of Shankar, S/o. Sanganna Atnoor, who is the ancestor of the plaintiff. Subsequently, the said property changed hands by division in the joint family and it had fallen to the share of the plaintiff and two other branches represented by Balachandra Atnoor and Srinivasa Rao Atnoor.
5. It is further contended that Sangappa Atnoor the brother of Nagappa was allotted half share in the original property and the remaining half share was allotted to the share of Nagappa which was succeeded by his two sons Saibanna and Shankar. Therefore, each one of them got 1/4th share in the original property. The said property was in turn succeeded by their sons Gundappa and Balachandra and the portion of the property which are fallen to the share of Nagappa was succeeded by his only son Ramanna. It was again succeeded by his two sons Nagappa and Srinivasa.
6. It is further contended that the plaintiff purchased 1/4th share allotted to his father Gundappa and another 1/4th -5- NC: 2023:KHC-K:9004 RSA No. 7271 of 2012 share which devolved on Nagappa, S/o. Ramanna under two registered sale deeds dt.21.02.1980 and 19.05.1980 respectively. Accordingly, the city survey records were mutated in his name in respect of CTS No.403 which is the suit property on the basis of the sale deeds and khatha stood in his name.
7. It is contended that the land bearing CTS No.402 belongs to defendant Nos.1 and 2, situated on the southern side of the suit property. There was no lane in between the land of the plaintiff and the defendants. The plaintiff and the defendants were having access to the property only from the eastern side i.e., from Gulbarga - Humanabad road.
8. It is further contended that the plaintiff had put barbed wire fence surrounding his property to protect the same. Defendant Nos.1 and 2 have removed a portion of the said fence during September 2006 and they started to demolish the northern common wall which was in existence since 1960, which was facing the suit property and started to create opening in the said wall. The plaintiff found the action of defendant Nos.1 and 2 suspicious, questioned their high -6- NC: 2023:KHC-K:9004 RSA No. 7271 of 2012 handed acts, who informed the plaintiff that the land in between CTS No.402 and CTS No.403 is a government land and justified their high handed acts. Immediately, the plaintiff approached the Sanitary Inspector and also the Commissioner of City Corporation, Gulbarga. It was learnt by the plaintiff that the defendants are carrying on the activity illegally without any permission from Gulbarga Development Authority.
9. The plaintiff approached the City Survey Office to verify the documents and was shocked to know that behind his back, city survey records were manipulated without issuing any notice. They managed to create a lane by assigning separate CTS No as 403/1. It was clear that the defendants in collusion with the City Survey officials, managed to concoct the documents referring to the lane which was never in existence. Assignment of CTS No.403/1 to the portion of the property belonging to the plaintiff was high handed act of the defendants and without any legal sanction.
10. It is contended that the original city survey records disclose that there was no government lane that was in existence between CTS No.402 and 403 which was newly -7- NC: 2023:KHC-K:9004 RSA No. 7271 of 2012 shown as CTS No.403/1, measuring 4.5 mts X 99 mts. This manipulation of records was only in the year 2004 behind the back of the plaintiff, with an intention to help the defendants to create openings in the common northern wall and to have an access from the northern portion of the property of the defendant Nos.1 and 2. All such illegal manipulation carried out by CTS officials was solely on the representation submitted by the defendants. No procedure as contemplated under law for formation of lane or for assigning new CTS number or to mutate or sub divide the original CTS number was followed. Therefore, it is contended that the portion of the land now shown as CTS No.403/1 did not exist at any point of time and do not vest with city corporation as it is part and parcel of the suit property.
11. In view of the above, the plaintiff sought for declaration that assignment of CTS No.403/1 out of the suit property belonging to the plaintiff, measuring 4.5 mts X 99 mts and treating it as government lane is illegal and unauthorized. He also sought for perpetual injunction restraining defendant Nos.1 and 2 from illegally opening the doors or windows -8- NC: 2023:KHC-K:9004 RSA No. 7271 of 2012 towards CTS No.403 which is fully described as the suit property.
12. Defendant Nos.1 and 2 have filed their written statement denying the contentions taken by the plaintiff. The description of the suit property and the boundaries mentioned in the plaint are all denied. Inheritance of the property as stated in the plaint and purchase of a portion of the property described as the suit property by the plaintiff is also denied.
13. It is contended that in between the land bearing CTS No.403 and the land of defendant Nos.1 and 2, there exists a lane having width of 15 feet. It is contended that the grand mother of defendant Nos.1 and 2 by name Eramma, W/o. Hanumanthappa Ganseve had purchased the open land measuring 200/129 feet under the registered sale deed from its earlier owner Madiwalappa Sulegar and others. The land belonging to the defendants was assigned CTS No.402 and a lane was in existence on the north of house property of the defendants. It is denied that access to the said property of the defendants was only from the eastern side i.e., from Humanabad - Gulbarga Road. But it is contended that access to -9- NC: 2023:KHC-K:9004 RSA No. 7271 of 2012 their house was on the northern side, facing to 15 feet wide lane which was in existence from time immemorial. There was a door in the said wall facing the lane, which was removed for the purpose of replacing it with the shutter. Defendants have not involved in any high handed acts as contended by the plaintiff. The other door which was also there in the northern wall of defendants' house was closed by their father as the same was having opening to the godown. But however, the signs of existence of the said door was visible in the wall.
14. It is further contended that after purchase of the property by the grand mother of defendant Nos.1 and 2, She applied for permission for construction of the house in the year 1962 to the Municipality and obtained the approved plan for the proposed construction. In the said plan, there is reference to the lane which is in question. The existence of the lane was within the knowledge of the plaintiff. The lane was referred to even in the tonch map or the survey map maintained in city survey office. There was no manipulation or concoction of any public records. The very same lane which was in existence from time immemorial was being used by the general public as approach road to reach the burial ground which was situated
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NC: 2023:KHC-K:9004 RSA No. 7271 of 2012 behind the property of the defendants. In city survey office, after completing the formalities and also with notice to the neighbours, assigned CTS No.403/1 to the existing lane, which was also within the knowledge of the plaintiff. Therefore, it is contended that the lane in CTS No.403/1 is a government lane, existing from time immemorial and it was never part of CTS No.403. It is denied that there was a common wall on the northern side of defendants' property and the defendants for the first time tried to open the door in the said wall which gave cause of action to the plaintiff. Hence, it is prayed that the suit of the plaintiff be dismissed with cost.
15. On the basis of these pleadings, the following issues were came to be framed:
"01. Whether the description of the suit property is correct?
02. Whether the plaintiff proves that CTS No.403/1 is measuring 4.5 meters x 99 meters?
03. Whether the plaintiff proves that CTS No.403/1 is part and parcel of suit property?
04. Whether the plaintiff proves that the CTS No.403/1 is illegally and unauthorisedly assigned as Govt. lane?
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NC: 2023:KHC-K:9004 RSA No. 7271 of 2012
05. Whether the plaintiff proves that there is a common wall in existence since 1960 between suit property and CTS No.402?
06. Whether the defendants No.1, 2 prove that there is a lane having a width of 15 feet towards North of their house and that wall of their house is their own and exclusive wall?
07. Whether plaintiff proves that on 9.10.06 the defts. No.1 and 2 tried to open doors illegally in the common wall between suit property and CTS No.402?
08. Whether the plaintiff is entitled for the reliefs?
09. What order or decree?"
16. The plaintiff examined himself as PW-1, examined PW-2 and got marked Exs.P1 to P20 in support of his contention. Defendant No.2 examined himself as DW-1 and got marked Exs.D1 to 14 in support of his defence. The trial Court after taking into consideration all these materials on record, answered issue No.1 in the affirmative, issue Nos.2 to 8 in the negative and accordingly, dismissed the suit of the plaintiff with cost.
17. Being aggrieved by the same, the plaintiff has preferred R.A. No.97/2010 before the First Appellate Court. The First Appellate Court on re-appreciation of the materials on
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NC: 2023:KHC-K:9004 RSA No. 7271 of 2012 record, allowed the appeal and decreed the suit of the plaintiff as prayed for, by setting aside the judgment and decree passed by the trial Court.
18. Being aggrieved by the same, defendant Nos.1 and 2 are before this Court.
19. Heard Smt. Hema L. Kulkarni, learned counsel for the appellants/defendant Nos.1 and 2, Sri Pramod N. Kathavi, learned Senior Advocate for Sri Biradar Sadanand and Sri Santosh A., learned counsel for respondent No.1/plaintiff, Sri D.P. Ambekar, learned counsel for respondent No.2 and Sri Rajkumar A. Korwar, learned High Court Government Pleader for respondent No.3. Perused the materials including the trial Court and the First Appellate Court records.
20. Learned counsel for the appellants/defendant Nos.1 and 2 contended that the plaintiff has failed to prove any of the contentions taken in the plaint. His contention that originally the property was belonging to one Qazi Yusufuddin as inamdhar and he gave the land in favour of Shankar under the permanent lease deed is not proved. There are absolutely no materials to probabilise his contentions. The contention of the
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NC: 2023:KHC-K:9004 RSA No. 7271 of 2012 plaintiff that he purchased 1/4th share from Nagappa and 1/4th share from Gundappa under Exs.P11 and 12 do not probabilise his contention that the same refers to the suit property.
21. Learned counsel further submitted that Ex.D4 is the Notification issued by the City Corporation, Gulbarga which is dated 12.08.1963. There is reference to the lane on the northern side of the defendants property at an undisputed point of time. Exs.D5 and 6 are the plans to show the building proposed to be constructed by Eramma which was submitted to the Municipal Corporation. In both these plans, there is reference to the lane to the north of her property. Ex.D7 is the notice issued by city survey office dated 10.12.2003 to undertake survey. Inspite of service of notice, the plaintiff has not participated in the survey, nor challenged the same. The said survey was undertaken as per the letter dated 09.07.2003 which is marked as Ex.P5. The City Survey officials carried out survey and assigned new number as CTS No.403/1 to the lane which was in existence from time immemorial. The plaintiff has not chosen to challenge the said order passed by the city survey official. But on the other hand, he rushed to the Court seeking declaration and injunction. The trial Court on
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NC: 2023:KHC-K:9004 RSA No. 7271 of 2012 appreciation of the materials on record, rightly held that the plaintiff has not proved the permanent lease refer to in the plaint. The plaintiff has not produced any document to trace his title. The trial Court has given reasons for not accepting Ex.P13 map produced in FDP No.8/1978, as the lane in question was never the subject matter in the said final decree proceedings. The trial Court also appreciated Exs.D4 to 7 as clinching documents to prove existence of the lane from time immemorial and rightly dismissed the suit of the plaintiff. The First Appellate Court on the contrary, placed reliance on Ex.P13 to decree the suit of the plaintiff.
22. Learned counsel further submitted that the plaintiff is calling in question correctness of the order passed by the revenue officials. Under Section 61 of the Karnataka Land Revenue Act, 1964 (hereinafter referred to as the 'KLR Act' for brevity) the jurisdiction of the Civil Court is excluded as it is only the revenue Court which shall have jurisdiction to determine, decide or dispose of any such matter under the KLR Act. As per Section 63 of the KLR Act, the plaintiff has to exhaust his remedy by preferring an appeal against the order passed by the revenue officer and the Civil Court will not have
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NC: 2023:KHC-K:9004 RSA No. 7271 of 2012 jurisdiction to entertain the contention raised by the plaintiff. It is therefore contended that the First Appellate Court committed an error in deciding the suit when the same is not maintainable as the remedy available for the plaintiff is to approach the revenue Court by challenging the order of the City Survey officials.
23. Learned counsel further contended that the First Appellate Court also committed an error to proceed to decree the suit without taking into consideration the failure of the plaintiff to prove his contention as taken in the plaint. Hence, she prays for allowing the appeal and to restore the judgment and decree passed by the Trial Court by setting aside the impugned judgment and decree passed by the First Appellate Court
24. Per contra, learned Senior Advocate for the respondent/plaintiff opposing the appeal submitted that the plaintiff has sought for a specific relief of declaration that assignment of CTS No.403/1 out of the property belonging to the plaintiff, measuring 4.5X99 metres and treating it as government lane is illegal and unauthorized. The said prayer
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NC: 2023:KHC-K:9004 RSA No. 7271 of 2012 was only against defendant Nos.3 and 4. Defendant Nos.3 and 4 have never raised their objection against granting such reliefs. They never contested the suit. Defendant Nos.1 and 2 have no locus standi to question granting of such reliefs in favour of the plaintiff against defendant Nos.3 and 4.
25. Learned Senior Advocate further submitted that only the relief of perpetual injunction was sought against defendant Nos.1 and 2 and their defence should have been restricted only for grant of such relief of perpetual injunction.
26. Learned Senior Advocate contended that the plaintiff has produced the sketch along with the plaint showing the suit property belonging to the plaintiff which he purchased in two bits under two separate sale deeds Exs.P11 and 12. The land belonging to Sharanaiah Swami Puranik is situated to the eastern side of the suit property. Gulbarga to Humanabad Main road is situated to the south of the suit property. There is a common wall and it is compound of Basavanappa which is the property now claimed by defendant Nos.1 nd 2. Since the defendants started removing the compound wall for the purpose of opening doors in the same, the suit was came to be
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NC: 2023:KHC-K:9004 RSA No. 7271 of 2012 filed against them seeking perpetual injunction. Since defendant Nos.3 and 4 assigned new number i.e., CTS No.403/1 to the portion of the suit property and referred it to be a government lane by concocting records in collusion with city survey officials, behind back of the plaintiff, declaration against them was sought.
27. Learned Senior Advocate would contend that CTS numbers are given to identify the private properties of the individuals. Public road and lanes were never identified with CTS numbers. Even though it is contended by defendant Nos.1 and 2 that the lane in question was in existence from time immemorial, there is absolutely no document which is worth believing to show existence of such lane. On the other hand, the documents produced by the plaintiff including Ex.P13 an undisputed document i.e., map and report submitted in FDP No.8/1978, there is no reference to any lane now referred to as government lane.
28. Learned Senior Advocate submitted that, Ex.P5 is the letter dated 09.07.2003 issued by defendant No.1 to ADLR requesting to survey the land and create a lane in CTS No.403.
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NC: 2023:KHC-K:9004 RSA No. 7271 of 2012 Acting on this representation submitted by defendant No.1, the City Survey officials obliged to concoct Exs.P6 to 9 without following the procedure contemplated under law.
29. He further submitted that even though it is contended that a notice was issued to the plaintiff as per Ex.D7 on 10.12.2003, no materials are placed before the Court to demonstrate service of said notice on the plaintiff. No panchnama was admittedly drawn and no order whatsoever was passed for conducting survey. No survey map or report is submitted by the City Survey officials. But they managed to concoct the entry dated 30.01.2004 as per Ex.P6 and referring the owner of CTS No.402 as the reason for declaring the government lane in CTS No.403.
30. Learned Senior Advocate submitted that, as per Ex.P6, on 07.03.1992 the name of the plaintiff is shown as one of the holder of the property. But, no notice was served on him and he was not a party to any of the proceedings either to hold survey or to declare the portion of his property as government lane. There is absolutely no reason as to why the so called government lane was formed in the private land i.e., in
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NC: 2023:KHC-K:9004 RSA No. 7271 of 2012 Sy.No.403, by sub dividing the same as CTS No.403/1 as per Ex.P7.
31. Learned Senior Advocate further submitted that, Exs.P8 and 9 - the tonch maps issued by ADLR office make the position very clear that the so called government lane in CTS No.403/1 was carved out of CTS No.403 which admittedly belongs to the plaintiff. When the title deeds of the plaintiff i.e., Exs.P11 and 12 are considered in the light of Ex.P9 - the field book detail regarding mapping of city survey of Gulbarga, makes the position very clear that the said portion of the land identified as CTS No.403/1 was carved out of CTS No.403 belonging to the plaintiff.
32. Learned Senior Advocate contended that Ex.P10 is the objection raised by the plaintiff addressed to the Commissioner of City Corporation against the defendants, who ventured to open the common wall and construction of shop premises on the northern portion of CTS No.402 illegally. Since no action whatsoever was taken on the said letter dated 02.09.2006, the plaintiff has rushed to the Court seeking declaration and permanent injunction.
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NC: 2023:KHC-K:9004 RSA No. 7271 of 2012
33. Learned counsel would contend that as per Ex.P11 dated 21.02.1980, the property purchased by the plaintiff measures 49 feet North to South, on the eastern side and 52 feet on the western side. The total area purchased under Ex.P11 is 9,595 sq.ft. The southern boundary of the said property is mentioned as compound of Basavanappa Gangseri (Chandra Mohan). Even at an undisputed point of time i.e., during 1980 when the property was purchased, there was no reference to any lane on the southern side of the property which was purchased by the plaintiff. The sketch appended to Ex.P11 also makes the position very clear as there was no reference to the lane on any portion of the land that was purchased by the plaintiff including on the southern side.
34. He further submitted that similarly Ex.P12 is the other sale deed under which the plaintiff has purchased the total area measuring 2,399 sq.ft. and the boundaries are mentioned similar to the boundaries mentioned in Ex.P11. Ex.P12 is also appended with a sketch which refers to the southern boundary as common wall between the property
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NC: 2023:KHC-K:9004 RSA No. 7271 of 2012 purchased by the plaintiff and Basavanappa Gangseri (Chandra Mohan).
35. Learned Senior Advocate contended that Ex.P13 is the final decree in original suit No.1/1/1959-60 and FDP No.8/1978. Final decree was drawn on 28.12.1994 on the basis of the Commissioner's report and the sketch. Defendant No.1 Qazi Yusufuddin referred to by the plaintiff in the plaint was defendant No.1 in the said suit and he was allotted with CTS Nos.401 to 405, totally measuring 6,775 sq.mt. Ex.P13(a) is the sketch drawn by the Court Commissioner in respect of all those properties. As per this document even at an undisputed point of time, it do not refer to the so called lane, now referred to by the defendants. Defendant Nos.1 and 2 who claim to be the owners of CTS No.402 which is the subject matter of Ex.P13 cannot question the validity of the same.
36. The photographs produced by the plaintiff disclose that defendant Nos.1 and 2 have recently made an opening in the disputed wall to fix shutters and that probablises the contention of the plaintiff that the defendants are claiming for forming new lane on the northern portion. Even though the
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NC: 2023:KHC-K:9004 RSA No. 7271 of 2012 defendants contended that the lane was in existence from time immemorial and there were doors in the wall, the same is not probablised.
37. Learned Senior Advocate contended that even though the defendants have produced Exs.D5 & 6 to prove existence of the lane from the time immemorial, they are not authentic documents and they do not refer either to the property of the plaintiff or defendant Nos.1 and 2. Even if it is to be considered that the proposed construction shown therein was in the property of defendant Nos.1 and 2, there is no reference to the property now belonging to the plaintiff in the said sketch. On the other hand, immediately to the north of defendants' property, proposed portion is shown as measuring 15 feet in width and immediately thereafter, the open plot belonging to Puranik is shown. There is no explanation as to why the property bearing CTS No.403 now belonging to the plaintiff is not shown either in Ex.D5 or in any other documents relied on by the defendants.
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38. It is stated that Exs.D5 and 6 are the documents produced by defendant Nos.1 and 2 which will not create any right in their favour in the property belonging to the plaintiff.
39. Learned counsel further submitted that Exs.D11 and 12 are the sale deeds in urdu language. English translations are produced as per Ex.D11(a) and 12(a). The measurement of the property shown in Ex.P11(a) is from East to West 100 feet, North to South 52 feet and in Ex.D12 East to West 100 feet and North to South 51 feet. These documents do not refer to any survey number or plot number to identify the property but strangely the property that was claimed by defendant Nos.1 and 2 in the written statement was measuring 200X120 feet which do not correspond with Exs.D11 and 12.
40. Learned Senior Advocate also contended that defendant Nos.1 and 2 have not examined any of the independent witnesses to prove existence of the public lane from time immemorial. Not even a single citizen raised any dispute nor claimed right over the said public lane at any point of time. Even defendant Nos.3 and 4 have no defence in their favour. But, it is only defendant Nos.1 and 2 who are
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NC: 2023:KHC-K:9004 RSA No. 7271 of 2012 contesting the suit contending that the lane in question was in existence from time immemorial. Even the village map produced as additional document do not refer to any lane which was in existence. Under such circumstances, the defence taken by the defendants is to be rejected.
41. Learned counsel further submitted that the defendants have not taken any defence that the suit of the plaintiff is not maintainable in view of Section 61 and 63 of the KLR Act. No issues were framed in that regard. On the other hand, the Trial Court held issue No.1 in the affirmative i.e., proof of description of the suit property in the plaint. It is for the first time before this Court it is tried to be contended that the suit is not maintainable in view of Section 61 and 63 of the KLR Act. Defendant Nos.3 and 4 have never passed any order. They have never conducted any survey, nor submitted any report. Under such circumstances, excluding the jurisdiction of the Civil Court as provided under Section 61 and 63 of the KLR Act does not arise.
42. In fact, no substantial question of law would arise in the present case as the First Appellate Court on proper
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NC: 2023:KHC-K:9004 RSA No. 7271 of 2012 appreciation of the materials on record, categorically held that the plaintiff is entitled for the relief as prayed for. There are no reasons to interfere with the same. Hence, he prays for dismissal of the appeal with cost.
43. This Court vide order dated 04.03.2013 framed the following substantial questions of law:
"i) Whether the judgment and decree passed by the first appellate Court is substantial in the absence of appreciation of legal status of permanent Lessee and ownership related to suit property assigned as CTS bearing No.403, pleaded by the plaintiff?
ii) Whether the first appellate Court was right in dealing only the evidence and relying upon pertaining to property CTS bearing No.403/1, avoiding to look in to or to discuss the evidence, pertaining to the suit property i.e., CTS No.403, as pleaded in para two of plaint?
iii) Whether the first appellate Court was right in not appreciating judiciously the admissions made by plaintiff as pointed out by the trial court in its judgment?"
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44. Learned counsel for the appellants submitted a memo at the time of addressing arguments seeking for framing additional substantial questions of law as under:
"A) Whether or not the First Appellate Court right in decreeing the suit in the absence of the title deeds, especially when the link document of alleged perpetual lease deed executed by the Yousuf Kazi is not produced by the plaintiff, in order to establish the competence (Shankar S/o.Sanganna, Nagappa and Gundayya) to execute sale deed in favour of the plaintiff based on which declaratory relief is sought for? B) Whether or not the First Appellate Court right in deciding the suit when it is not maintainable in view of the special remedy available to the plaintiff under Revenue Act, under which the order passed by revenue Court is final and civil court's jurisdiction is expressly barred U/Sec.61 and 63 of KLR Act?"
45. The proposed additional substantial question of law No.(A) is covered under the substantial question of law No.(i) framed by this Court vide order dated 04.03.2013. Hence, I do not find any reason to frame the said additional substantial question of law for consideration. However, a new ground is raised during arguments regarding non-maintainability of the
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NC: 2023:KHC-K:9004 RSA No. 7271 of 2012 suit in view of Section 61 and 63 of the KLR Act. I deem it appropriate to frame the following additional substantial question of law:
"Whether the suit of the plaintiff is barred under Sections 61 and 63 of Karnataka Land Revenue Act?"
My answer to the above substantial questions of law Nos.(i) to (iii) is in the 'Affirmative' and the additional substantial question of law is in the 'Negative' for the following:
REASONS
46. It is the specific contention of the plaintiff that he is the owner of the suit property bearing CTS No.403, measuring 1,766.5 sq.mts., situated in Sy.No.9 of Vakkalgera Nehru Gunj Gulbarga with its boundary on the Southern side: Property in possession of defendant Nos.1 and 2 and on the Eastern side:
Government Road. To prove his ownership over the suit property, the plaintiff has produced the sale deeds Exs.P11 and 12 which are dated 21.02.1980 and 19.05.1980. Under Ex.P11, the plaintiff purchased the plot totally measuring 9,595 sq.ft. i.e., East to West 190 feet, North to South towards East 49 feet and towards West 52 feet. The boundary of the
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NC: 2023:KHC-K:9004 RSA No. 7271 of 2012 property on the southern side is the compound of Sri Basavanappa Gangseri (Chandra Mohan) and to North; open land and compound of Sri Sharanayya Swami Puranik. Similarly, under Ex.P12, the total area purchased was 2,399 sq.ft. i.e., measuring East to West 95 feet and North to South towards eastern side 24.6 feet and towards west 26 feet. Again, the southern boundary is the compound wall of Basavanappa Chandramohan (common) and to the north open plot of Prabhakar Atnoor. The sketches are appended to the sale deeds Exs.P11 and 12 referring to the measurement and the boundaries at an undisputed point of time. There is no reference to any lane in any of these documents. Even though the defendants have not admitted the ownership of the plaintiff over the suit property, they have also not categorically denied and disputed the ownership of the plaintiff.
47. It is pertinent to note that in the affidavit filed by defendant No.2 in lieu of examination in chief, he specifically stated that the suit property (as referring to the lane in question) is located in between the properties of these defendants and the plaintiff. Even though it is contended that the sale deeds produced by the plaintiff do not confer any right,
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NC: 2023:KHC-K:9004 RSA No. 7271 of 2012 title or interest in his favour, there is absolutely no reason assigned as to why the registered sale deeds do not convey any right, title and interest in favour of the plaintiff. It is not in dispute that the sale deeds relied on by the plaintiff were never challenged by any person concerned. Even the CTS records pertaining to CTS No.403 stands in the name of the plaintiff. The Trial Court answered issue No.1 in the affirmative holding that the description of the property by the plaintiff is correct. Under such circumstances, I do not find any reason to discuss further about the ownership of the plaintiff over CTS No.403.
48. Now the question arises as to what was the extent of the land belonging to the plaintiff in CTS No.403. As per Exs.P11 and 12 referred to above, the total extent of the land purchased by the plaintiff under the registered sale deeds is 9,595 sq.ft. + 2,399 sq.ft. The width of the plots East to West 190 feet and North to South towards East 49 feet and West 52 feet. It is stated that the property purchased under Ex.P.12 dated 19.05.1980 falls towards southern side of the property that was purchased under the sale deed dated 21.02.1980 marked as Ex.P11.
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NC: 2023:KHC-K:9004 RSA No. 7271 of 2012
49. Ex.P1 is the extract from the assessment of property register for the year 1993-94 standing in the name of the plaintiff described as open land assessed for tax. Ex.P2 is the field book of detail mapping city survey of Gulbarga pertaining to CTS No.403, which was issued on 09.03.1994.
50. Ex.P3 is the extract from the property register card pertaining to CTS No.403, according to which, the total extent is 1,766.5 as per entry dated 07.03.1992. There is reference to the permanent lease by Qazi Yusufuddin in favour of Shankar Sanganna Atnoor. After his demise, devolved on his sons Ramanna, Shankrappa and Saibanna. After demise of all the three sons, mutated half portion in the name of the plaintiff and one-fourth portion each in the names of Balchandra S/o Shankrappa Atnoor and Srinivas S/o Ramanna Atnoor. This is the basis for the plaintiff to claim the suit property measuring 1,766.5 sq.mt., which is supported by the sale deeds Exs.P11 and 12.
51. Ex.P4 is the tonch map pertaining to CTS No.403. But this sketch do not refer to any measurements. However,
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NC: 2023:KHC-K:9004 RSA No. 7271 of 2012 the road leading towards Humanabad Road is shown. But there is no reference to any lane now identified as CTS No.403/1.
52. Ex.P5 is the copy of the letter dated 09.07.2003 written by defendant No.1 to the ADLR, Gulbarga, requesting to sub divide CTS No.403 by identifying the lane as per the approved sketch of Town Municipality.
53. Ex.P6 is the extract from the property register card pertaining to CTS No.403 mutating the name of Prabhakar Atnoor, Balachandra and Srinivas as referred to in Ex.P3. Further, as per the entry dated 30.01.2004, the owners of CTS No.402 i.e., defendant Nos.1 and 2 got the approval in respect of the Government lane and accordingly it was measured and mutated. Consequently, the said portion of the land is mentioned as Government lane - public road in the CTS extract.
54. Ex.P7 is in respect of CTS No.403/1 which was for the first time sub-divided from CTS No.403 and identified as government lane (public). Ex.P8 is the tonch map pertaining to CTS No.403 where CTS No.403/1 was carved on the southern side of CTS No.403. Ex.P9 is the field book detail mapping City
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NC: 2023:KHC-K:9004 RSA No. 7271 of 2012 Survey of Gulbarga corresponding to Ex.P8 showing CTS No.403 with the carved out portion on the southern side identified as CTS No.403/1. It is pertinent to note that the measurements of CTS No.403 on the western side is shown as 11 ft., whereas on the eastern side 10.5 ft.
55. Ex.P10 is the letter addressed by the plaintiff to the Commissioner of City Corporation, Gulbarga regarding illegal opening of compound wall and construction of shops facing north in CTS No.402 by defendant No.1. The same was submitted to the office of the Commissioner on 02.09.2006.
56. Ex.P13 is the final decree drawn in FDP No.8/1978 on 28.12.1994 on the basis of the Commissioner's report. The decree holder in the said suit is Halima Begum, W/o. Mohammed Ibrahim Khan and defendant No.1 is Kazi Yousufuddin S/o. Kazi Valiiddin who was referred to in the plaint by the plaintiff as Inamdhar. As per this document, defendant No.1 was allotted major part of CTS Nos.401 to 405 total area measuring 6,775 sq.mt shown in yellow colour in the map that is annexed to the decree. Ex.P13(a) is certified copy of the map annexed to the decree. In the entire map which
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NC: 2023:KHC-K:9004 RSA No. 7271 of 2012 formed part of the final decree, there is no reference to any lane attached to CTS No.403. Exs.P16 to 19 are the photos which disclose that fresh works were undertaken by the side of a wall by removing a portion.
57. Ex.D1 is the self assessment register dated 17.03.2004 from the assessment register of Gulbarga City Corporation pertaining to the land belonging to defendant No.1. The measurement of the property mentioned therein is 18,144 feet.
58. Ex.D2 is the map pertaining to the proposed plan for construction of compound wall in the land belonging to Eramma, W/o. Hanmanthappa. On the northern side, there is reference to 15 feet wide lane and open land. The plan said to be dated 24.08.1962 and said to have been approved by the Executive Officer. There is reference to the road leading to Humanabad Road. But the plan do not refer to any property number.
59. Ex.D5 is the similar plan approved as per corrected plan through permission number 239 dated 09.01.1962, issued by the Executive Officer, City Municipality, Gulbarga. The
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NC: 2023:KHC-K:9004 RSA No. 7271 of 2012 property does not refer to any number to relate it to the present CTS No.402. But it is stated that it measures 100' x 52', situated at Nehru Gunj Gulbarga, surrounded on North by 15 feet proposed road and thereafter, open plot of Sri Puranik, East- Humanabad road, South- open plot of Sri Sridhar Rao Kulkarni and towards west plot of Sri Shivalingappa Sorde. Ex.P6 is the map showing the alterations in the previous approved plan and towards North 15 feet lane and neighbors plot is shown. Again, there is no reference to any property number.
60. If Ex.D5 is to be considered further, to the further north of the said proposed lane measuring 15 feet from north to south, the land belonging to Sri Puranik is shown. It is not the contention of the defendants at any point of time that to the north of the so called lane the property of Sri Puranik is situated. Ex.D4 is the notification dated 12.08.1963 on the representation given by Eramma for re-construction of the house where northern boundary is shown as a lane. But strangely there is no reference to the property number or the boundaries on the other side of the property to identify the same. Similarly, in Ex.D6 there is reference to 15 feet lane and
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NC: 2023:KHC-K:9004 RSA No. 7271 of 2012 neighbour's plot on the northern side of the property of Eramma. Ex.D2 is also a similar building plan belonging to Eramma of the year 1962. Towards northern side of the proposed building there is a reference to 15 feet wide lane and open land. If at all Exs.D2, D4 to D6 are to be taken into consideration, in support of the contention of defendant Nos.1 and 2, that there exists a public lane measuring 15 feet on the southern side of CTS No.403 and northern side of CTS No.402 from time immemorial, the said lane should have found a place in any of the public documents. Even though Exs.D2, D4 to D6 are said to be approved building plan and notification where there is reference to such a lane on the north of the property of Eramma, as I have already stated, there is no reference to any property number. Moreover, there is absolutely no explanation as to why there is no reference to the land now belonging to the plaintiff in the said documents but there is reference to the land of one Puranik which is not reconciling with the defence taken by the defendants. Under such circumstances, the defendants should have placed any of the public records including village map or city survey records which prove the
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NC: 2023:KHC-K:9004 RSA No. 7271 of 2012 existence of the public lane from time immemorial. There is no such document to which the defendants have laid their hands.
61. Ex.D7 is the notice dated 19.12.2003 issued by the City Surveyor, Gulbarga to Hanumanthappa i.e., defendant No.1, Prabhakar- plaintiff, Balachandra and Srinivas and also to the City Municipality notifying the survey that is proposed to be undertaken on 30.12.2003 to record the lane in CTS No.403. The document does not bear the endorsement for having served the notice on any of the addressees.
62. The plaintiff sought for declaration to the effect that there is no CTS No.403/1 out of the property belonging to the plaintiff measuring 4.5 x 99 meters treating it as a Government lane is illegal and unauthorized. Obviously this declaration is sought against defendant Nos.3 and 4 who are the Commissioner of City Corporation, Kalaburagi and City Survey Officer, Assistant Director of Land Records, office of the City Survey, Kalaburagi. The grievance of the plaintiff is not against defendant Nos.1 and 2 for seeking declaration in respect of CTS No.403/1 measuring 4.5 meters x 99 meters. But it is specifically against defendant Nos.3 and 4, more particularly,
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NC: 2023:KHC-K:9004 RSA No. 7271 of 2012 against defendant No.4 who issued sketch as per Ex.P8 showing the lane as 403/1 carved out of Sy.No.403 which is belonging to the plaintiff on the basis of the endorsement dated 30.01.2004 which was sought to be on the basis of the survey at the instance of defendant Nos.1 and 2 being the owners of CTS No.402 and declaring that the said portion is a Government land to be used as public road. Accordingly, Ex.P7
- the Property Register Card in respect of CTS No.403/1 measuring 393.80 meters was drawn along with the sketch Exs.P8 and P9.
63. It is the contention of the plaintiff that the suit property bearing CTS No.403 measuring 1766 sq.mts. is his absolute property and there is no lane running on the south of the said property. On the other hand, it is the contention of the contesting defendants that there is a lane running on the northern side of CTS No.402 and they are entitled to open the doors or windows in the wall on the northern side. It is specifically contended by contesting defendants that the lane in question is a public lane which is in existence from time immemorial. Defendant Nos.1 and 2 are relying on Exs.D4 to
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NC: 2023:KHC-K:9004 RSA No. 7271 of 2012 D6 to prove the existence of the lane at an undisputed point of time.
64. When existence of the public lane from time immemorial as contended by the defendants is not proved, for forming a new road/street/lane there is separate procedure provided under the Karnataka Municipal Corporations Act, 1976 (hereinafter referred to as the 'KMC Act' for brevity). Section 270 of the KMC Act deals with acquisition of land for widening, opening, extending or otherwise improving the public street or for making any new public street, etc. Such acquisition of the property is to be done by the Commissioner of the Corporation. As per Section 281 of the KMC Act any person who intends to form or make new private street, he should make a written application to the Commissioner with plans with necessary details and on receipt of such requisition, the Commissioner has to follow the procedure as contemplated under the said provision. Section 284 of the KMC Act refers to right of owners to require streets to be declared public. Section 283 of the KMC Act deals with the power of the Commissioner to order work to be carried out in respect of a private street or part thereof. Therefore, it is clear that even for forming a new road
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NC: 2023:KHC-K:9004 RSA No. 7271 of 2012 or to extend or maintain the old private street or to declare it as a public road or for making a new private street, certain procedures are contemplated under the KMC Act.
65. Section 267 of the KMC Act deals with the powers and authorities of the Commissioner with regard to streets. It includes lay-out and making new public streets, widen, open, extend or otherwise improve any public street. But the Commissioner of the Corporation is kept away from the entire procedure of either identifying or declaring a piece of land as a Government land. But on the other hand, the City Survey Officer has taken the lead in sub-dividing CTS No.403 into two and identifying a Government lane with CTS No.403/1. Moreover, there is no explanation whatsoever as to why the public lane is identified with a CTS number which is something unusual.
66. According to defendant Nos.1 and 2, they have filed application as per Ex.P5 dated 09.07.2003. It was never addressed to the Commissioner of City Corporation but on the other hand it was addressed to the ADLR, City Survey Office, Kalaburagi to measure and to form 150 feet passage in CTS
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NC: 2023:KHC-K:9004 RSA No. 7271 of 2012 No.403. It is only thereafter, formation of the Government lane which is referred to as the public road in Ex.P6 as per endorsement dated 30.01.2004, was came to be effected and as per Ex.P7 CTS No.403/1 was mutated as Government lane (public) measuring 393.80 sq.mts. Accordingly, tonch map as per Ex.P8 was came to be drawn bifurcating CTS No.403 into two divisions carving 403/1 and showing it as a public lane in the dotted area. Similar sketch from the city survey sketch book is as per Ex.P9 and these documents make it clear that as per the application submitted by defendant No.1 i.e., Ex.P5, CTS No.403 was sub-divided and the public lane is identified as CTS No.403/1 and referred to the same as public lane or Government lane for the first time as per endorsement dated 30.01.2004. Earlier to 30.01.2004, none of the public documents, including the tonch map or city survey map or village map referred to the existence of the disputed lane.
67. Ex.D7 is the notice issued by the City Surveyor, Kalaburagi to the neighbouring land owners including the plaintiff herein. This notice is dated 10.12.2003, obviously, after submission of the application by the defendant as per Ex.P5. As per this document, the City Surveyor, Kalaburagi
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NC: 2023:KHC-K:9004 RSA No. 7271 of 2012 notified the plaintiff and others who are the neighboring owners about surveying the land on 30.12.2003 at 11.30 a.m. Nothing has been placed before the Court to contend that this notice was served on the plaintiff. Even though it is contended by defendant Nos.1 and 2 that plaintiff has not attended or participated in the survey and it is only the defendants who participated in such survey carried on by the City Surveyor, no scrap of paper is produced to contend that there was an actual survey of the property by drawing a panchanama and in the presence of the general public or a report or a sketch is drawn at any point of time. If at all there was a survey, a panchanama would have been drawn since it is claimed to be a public lane, a sketch should have been drawn at the spot with the measurement and a report also should have been submitted by the City Surveyor, Kalaburagi. If at all such documents were prepared, it will be available even with the defendants to produce the same before the Court in support of their contention. But none of those documents are produced before the Court which leads to a conclusion that there was no such survey nor preparation of the survey sketch or the survey report as required under law.
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NC: 2023:KHC-K:9004 RSA No. 7271 of 2012
68. It is pertinent to note that the City Survey Officer sub-divided CTS No.403 and carved out CTS No.403/1 to show it as a public lane or the Government lane, but the said Government lane is never identified as a public property in any of the revenue records. It appears that there is no order passed either identifying or declaring the said piece of land as a Government lane as the same is not produced before the Court. Even though it is contended by the defendants that the land in question is a public lane which was in existence from time immemorial, which was being used by the public at large, except defendant Nos.1 and 2, no other members of the general public have raised their voice with regard to the said land. The defendants have also not examined any such independent witness who can speak about either existence or formation of the Government lane. It is also pertinent to note that even as per Ex.D7 the notice was not given to the public at large about the survey that was said to have been undertaken by the City Surveyor.
69. Learned counsel for the defendants contended that the suit of the plaintiff is barred under Section 61 of the KLR
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NC: 2023:KHC-K:9004 RSA No. 7271 of 2012 Act. Section 61 of the KLR Act deals with exclusive jurisdiction of Revenue Courts and bar of jurisdiction of Civil Courts to determine, decide or dispose of any matter which it is, by or under this Act, empowered to determine, decide or dispose of any such matters. Sub-section (2) of Section 61 of the KLR Act contains the exceptions where the jurisdiction of the Civil courts is not barred. Section 62 of the KLR Act deals with savings of certain suits and it refers to suits which are not barred under Section 61 of the KLR Act. Therefore, Sections 61 and 63 of the KLR Act do not contemplate complete bar on the jurisdiction of the Civil Court.
70. Even though the learned counsel for the defendants placed reliance on Sections 61 and 63 of the KLR Act, it is not made clear as to which is the order or the proceedings passed either by the Commissioner of City Corporation, Kalaburagi or by the City Survey Officer, ADLR, office of the City survey, Kalaburagi that was required to be challenged by the plaintiff before approaching the Court. Prima facie, there is no order whatsoever passed by any of the authorities to enable the plaintiff to knock the doors of the Revenue Courts.
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NC: 2023:KHC-K:9004 RSA No. 7271 of 2012
71. Section 9 of CPC vests jurisdiction with the civil Court to deal with all suits of civil nature unless either expressly or impliedly barred. Learned counsel for the appellants failed to draw the attention of the Court to any such provision which bars the jurisdiction of the Civil Court expressly or impliedly exception Section 61 and 63 of the KLR Act. In the absence of any such order passed by the competent authority, I am of the opinion that the jurisdiction of the Civil Court is not barred. Moreover, the materials on record disclose that CTS No.403 is owned by the plaintiff. Admittedly, defendant Nos.1 and 2 have no right over CTS No.403. It is their specific contention that they are the owners of CTS No.402. Under such circumstances, they have no locus standi to challenge the claim of the plaintiff for declaration in respect of CTS No.403/1 against defendant Nos.3 and 4. When the civil right of the plaintiff to own and possess the property is at stake, the plaintiff is entitled to knock the doors of the Civil Court. Therefore, I do not find any substance in the contention taken by the appellants in that regard.
72. Learned counsel for the appellants placed reliance on the decision of the Co-ordinate Bench of this Court in
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NC: 2023:KHC-K:9004 RSA No. 7271 of 2012 1 Javarappa @ Javaraiah vs. Ramaiah and another in support of her contention that the suit of the plaintiff is barred under Sections 61 and 63 of the KLR Act. The Co-ordinate Bench of this Court held that the plaintiff was required to exhaust his right of appeal before the Revenue Court before instituting the suit before the Civil Court. But the facts and circumstances of that case is entirely different. In the said suit an application was filed before the Tahasildar claiming to issue survivorship certificate. Accordingly, the Tahasildar conducted an enquiry and issued the survivorship certificate. One of the respondents claimed that he is also the son of the deceased and by suppressing the said fact the survivorship certificate was obtained fraudulently. Therefore, he sought for cancellation of the certificate and for issuance of fresh survivorship certificate. Under such circumstances, it was held that the plaintiff in the said suit should have exhausted his remedy to challenge the survivorship certificate before the Revenue Court before approaching the Civil Court. Therefore, the said decision is not applicable to the facts of the present case. 1 RSA No.55/2013 disposed of on 25.06.2020
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NC: 2023:KHC-K:9004 RSA No. 7271 of 2012
73. Learned Senior Advocate for the respondent placed reliance on the decision of the Hon'ble Apex Court in Anathula Sudhakar vs. P. Buchi Reddy (Dead) by Lrs & Ors2 wherein the Hon'ble Apex Court, highlighting the general principles as to when a mere suit for permanent injunction will lie and when it is necessary to file a suit for declaration and/or possession with injunction as a consequential relief, clarified that a prayer for declaration will be necessary only if the denial of title is by the defendant or challenge to plaintiff's title raises a cloud on the title of the plaintiff to the property. It is also stated that a cloud is said to raise over a person's title, when same apparent defect in his title to a property, or when some prima facie right of a third party over it, is made out or shown. The action for declaration is the remedy to remove the cloud on the title to the property. If this principle is applied to the facts in the present case, it is the City Survey Officer who cast the cloud on the right and title of the plaintiff by carving out CTS No.403/1 and identifying the same as a public lane in the city survey records. Under such circumstances, the plaintiff has rightly sought for declaration to that effect for which he is entitled to. 2 AIR 2008 SC 2033
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NC: 2023:KHC-K:9004 RSA No. 7271 of 2012
74. To conclude it is also pertinent to note that the contesting defendant, while filing the written statement, specifically contended that the lane was in existence from time immemorial but by mistake the same was not entered in CTS records. Therefore, the representation was given as per Ex.P5 to enter it in the City Survey Records by finding the same with survey. Thereby the defendants have categorically admitted that in the City Survey Records the disputed lane was never shown or identified and it is for the first time during 2003-04, upon the representation by the defendants, such an exercise was done. In the absence of any proceedings as contemplated under law being followed to declare or even to enter the existence of the lane in CTS records, mutation of CTS No.403 as CTS No.403/1 and identifying the same as a public lane or a Government lane and the contention taken by defendant Nos. 1 and 2 cannot be accepted.
75. I have gone through the impugned judgment and decree passed by the First Appellate Court. It has taken into consideration all the materials on record and decreed the suit of the plaintiff by setting aside the impugned judgment and
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NC: 2023:KHC-K:9004 RSA No. 7271 of 2012 decree passed by the Trial Court. I do not find any reason to interfere with the same.
76. In view of the discussion held above, I am of the opinion that the substantial questions of law referred to above are to be answered in favour of the respondent and against the appellants. Hence, I proceed to pass the following:
ORDER
(i) The appeal is dismissed with costs.
(ii) The impugned judgment and decree dated 19.04.2012 passed in R.A.No.97/2010 on the file of the learned Principal Senior Civil Judge, Kalaburagi is hereby confirmed.
Registry is directed to send back the Trial Court and the First Appellate Court records along with copies of this judgment and decree.
Sd/-
JUDGE PN/SWK CT-VD List No.: 1 Sl No.: 9