Karnataka High Court
Bhaskar Rao Bhimarao Desai And Ors vs Bindurao Kristarao Karkun And Ors on 9 September, 2022
Author: H.P. Sandesh
Bench: H.P. Sandesh
IN THE HIGH COURT OF KARNATAKA
DHARWAD BENCH
DATED THIS THE 9TH DAY OF SEPTMBER, 2022
BEFORE
THE HON'BLE MR. JUSTICE H.P. SANDESH
R.F.A.No.690/1998
C/W
R.F.A.CROB.No.17/1998
R.F.A.NO.690/1998
BETWEEN:
Bhaskar Rao Bhimarao Desai
Since deceased by his LR's
1(a). Seemarani D/o Bhaskar Rao Desai,
W/o Srinivas Inamdar, Age: 22 years,
Occ: Household Work and Agriculture,
R/o: Yakkeri, Tq: Soundatti.
1(b) Akshata D/o Bhaskar Rao Desai
Now Akshata W/o Mohanraj Desai,
Age: 22 Years, Occ: Household work
R/o Bisankoppa, Tq: Gokak, Dist: Belgavi,
2. Pandurangarao Basavantrao Desai
Age: Major Occ: Agriculture
R/o Pattadakal Tq: Badami.
3. Shivanand Bhimarao Desai
Since deceased by his LR's
3(a). Kalavati W/o Shivarao @ Shivanand Desai,
Age: 45 years, Occ: Household Work
2
and Agriculrure, R/o: Pattadkal,
Tq: Badami Dist: Bagalkot
Now at Kyarkopp Tq: Dharwad Dist: Dharwad
...Appellants
(By Shri V.M.Sheelvant, Adv. For A1 (a) and (b),
A2 and A3 (a)
AND:
1. Bindurao Kristarao Karkun
Age: Major Occ: Agriculture,
R/o Pattadkal, Tq: Badami.
2. Sudhindra Kristarao Karkun
Age: Major Occ: Agriculture
R/o Pattadkal, Tq: Badami
2(a) Smt. Sumnagala W/o Sudhendrarao Mutalikdesai
Age: 56 years, Occ: Household Work
R/o: Pattadkal, Tq: Badami, Dist: Bagalkot
2(b). Smt. Jyothi W/o Madhav Bommigatti
Age: 35 years, Occ: Advocate
R/o: Pattadkal, Tq: Badami, Dist: Bagalkot
2(c). Shri. Santosh S/o Sudhendrarao Karakun
Age: 33 years, Occ: Private Service.
R/o: Pattadkal, Tq: Badami, Dist: Bagalkot
2(d). Smt. Ravati W/o Raghavendra Kerur
Age: 29 years, Occ: Household Work
R/o: Killa Oni, Kerur, Tq: Badami, Dist: Bagalkot
3. Venkatesh Kristarao Karkun
Age: Major Occ: Service
R/o Pattadkal Tq: Badami
4. Smt. Akkubai W/o Shyamrao Karkun
Age: Major Occ: Household work
R/o Pattadkal Tq: Badami
3
5. Smt. Shobhadevi W/o Bhaskar Rao Desai
Age: 54 Years Occ: Household work And Agriculture
R/o Pattadkal Tq: Badami
6. Raghuveer S/o Bhaskar Rao Desai
Age: 24 Years Occ: Agriculture
R/o Pattadkal Tq: Badami. ... Respondents
(By Shri K.L.Patil, Adv. for R1 and R2,
Shri Jayavittal Rao Kolar, Adv. for C/R1 to R4,
Service of notice to R3 (a to c) is held sufficient,
R2 is treated as LRs of deceased R4,
R5 and R6 are served)
This appeal is filed under Section 96 of the CPC
against the judgment and decree dated 28.08.1998 in
O.S.No.103/94 on the file of the Prl. Civil Judge (Sr.Dn.),
Bagalkot, partly decreeing the suit for declaration of
ownership, possession and injunction.
IN R.F.A.CROB.17/1998
1. Bindurao Krishnarao Karkun
Age:Major, Occ: Agriculture,
R/o Pattadakal, Tq:Badami.
2. Sudhindra Kristarao Karakun
Since deceased by LRs
2(a) Smt.Sumangala w/o Sudhindra Karkun
Age;55 years, Occ:Household work,
2(b) Smt.Jyothi w/o Madhav Bommigatti
Age:34 years, Occ:Advocate
2(c) Santosh S/o Sudhindra Karnkun
Age;32 years, Occ:agriculturist.
2(d) Revati w/o Ranghavendra Kerur
Age:28 years, Occ:Household work,
R/o Kill Street, Post:kerur,
4
Tq:Badami, Dist:Bagalkot.
3. Venkatesh Krishtarao karakun
Since deceased by LRs
3(a) Smt.Laxmi
W/o Venkatesh Mutalikdesai @ Karkun
Age;53 years, Occ:Household work,
R/o Pattadakallu, Badami,
Now at:H No.119, Bhuvaneshwar Nagar
Keshwapur, Hubballi-Dist:Dharwad.
3(b) Priyanka @ Priya
D/o Venkatesh Mutalikdesai @ Karkun
Age:26 years, Occ:Homemaker,
R/o Pattadakallu, Badami,
Now AT H.No.119, Bhuvaneshwar Nagar
Keshwapur, Hubballi-Dist:Dharwad.
3(c) Pragathi
D/o Venkatesh Mutalikdesai @ Karkun
Age:23 years, Occ:Home maker,
R/o Pattadakallu, Badami,
Now at:H No.119, Bhuvaneshwar Nagar,
Keshwapur, Hubballi-Dist:Dharwad.
4. Smt.Akkubai w/o Shyamrao Karkun,
Since deceased by legal heir cross objector No.2
... CROSS OBJECTORS
(By Shri K.L.Patil, Adv. for cross objector No.1 and
Cross objector No.2 (a) to (d)),
AND:
1. Baskar Rao Bhimarao Desai
Since deceased by LRs
1(a) Smt.Shobhadevi W/o Baskarrao Desai
Age:58 years, Occ:Household work,
R/o Pattadakallu, Badami.
5
1(b) Raghuveer S/o Bhaskararao Desai
Age:30 years, Occ:agriculture,
R/o Pattadakallu, Badami.
1(c) Akshata w/o Mohanraj Desai
d/o Bhaskarrao Desai
Age:28 years, Occ:Homemaker,
R/o Bisankoppa, Tq:Gokak, Dist:Belgavi.
1(d) Seemarani w/o Keshav Inamdar
D/o Bhaskarrao Desai
Age:26 years, Occ:Homemaker,
R/o Goravankolla, Tq:Goka,
Dist:Belagavi.
2. Pandurangarao Basavantrao Desai,
Age:Major, Occ:Agriculture,
R/o Pattadakal, Tq:Badami.
3. Shivanand Bhimarao Desai
Since deceased by LRs
3(a) Smt.Kalavathi,
w/o Shivrao Shivanand Desai,
Age:51 years, Occ:Householdwork,
R/o Pattadakal, Tq:Badami.
Dist:Bagalkot,
Now at Kyarakoppa, Dharwad.
Dist:Dharwad. ... Respondents
(By Shri V.M.Sheelvant, Adv. for R1 (a) to (d), and
R3 (a))
This cross objection is filed under Order 41 Rule 22
of CPC against the judgment and decree dated 28.08.1998
in O.S.No.103/1994 on the file of the Prl. Civil Judge
(Sr.Dn.), Bagalkot, partly decreeing the suit for declaration
of ownership, possession and injunction.
This appeal and the cross objection coming on for
final hearing on 18.08.2022 and the same having been
6
heard and reserved for pronouncement of judgment, this
day, the court delivered the following:
JUDGMENT
The appeal is filed by the defendants and the cross objection is filed by the plaintiffs challenging the judgment and decree in O.S.No.103/1994 dated 28.08.1998 on the file of the Prl. Civil Judge, Sr. Dn. Bagalkot at Bagalkot, granting permanent injunction and rejecting the relief of declaration.
2. For the purpose of convenience, the parties shall be referred according to their ranks before the trial Court.
3. The factual matrix of the case of the plaintiffs before the trial Court is that they are the owners in possession of the suit schedule land bearing R.S.No.53 measuring 13 acres 19 guntas of Nagaral (S.P.) and plaintiff Nos.1 to 3 are joint holders and owner in possession of land bearing R.S.No.56 measuring 8 acres 4 guntas of Nagaral (S.P.). The plaintiffs sought for the relief of declaration and permanent injunction and also for the possession if the 7 Court comes to the conclusion that if the plaintiffs are not in possession grant consequential relief of possession.
4. It is their contention that their ancestors names appeared in the below line column of revenue records since time immemorial. Hence, they shall be declared as owners. It is the claim of the plaintiffs that their predecessors and ancestors have been in lawful possession and enjoyment of the suit lands and the same has been recorded in the khatha of record of rights ever since the time of settlement under the Bombay Land Revenue Act. The defendants and their ancestors are shown above the line in the khatha as Inamdaars having the right of share in the government right of collection of assessment as alienies from the government. The defendants and predecessors in title have recognized the right of the plaintiffs and their predecessors as lawful owners in enjoyment though they were shown as Inamdaars above the line and the government also recognized plaintiffs and their predecessors and ancestors as being lawful owners in 8 possession paying assessment and are lawful owners under the Bombay Hereditary Offices (Vatan) Act and ever since the abolition of the said Bombay Paragana and Kulkarni Inam Abolition Act, 1950. It is contended that their rights to be in lawful possession as owner in the Vatan are not extinguished under the provisions of Section 3 of the said Bombay Paragana and Kulkarni Inam Abolition Act, 1950. It is contended that merely because the defendants' ancestors are shown above the line as holder of alienated land, they were not entitled to claim any rights of regrant under Section 4 of the said Act. It is contended that an illegal order of regrant in favour of defendants' ancestors do not confer any rights better than those rights which existed viz-a-viz the plaintiffs and their ancestors are lawful owners shown below the line under the system of maintaining revenue records under the Bombay Revenue Act and Land Revenue Manual. Even the defendants and ancestors have recognized the plaintiffs and their ancestors as owners since time out of memory. The change of any entry in the record of rights are 9 governed under Section 128 of the present Land Revenue Act and the plaintiffs' names have been recognized as holders below the line before the Karnataka Land Revenue Act. It is contended that the making of the entry and deleting the names of the plaintiffs from the record of rights have been challenged in the proceedings in RTS CR 50/91-92 of the Tahsildar and RTSAP No.35/92-93 of the Assistant Commissioner, Bagalkot. The same are dismissed and hence W.P.No.15958/1994 was filed by the plaintiffs before this Court and the same was disposed of with a direction to the plaintiffs to approach the civil court. It is contended that the plaintiffs never accepted the defendants and their predecessors as owners of the lands and defendants and their predecessors have never disputed the lawful possession since time out of memory for more than 100 years and they have perfected their title by adverse possession. It is contended that on the basis of the illegal order the defendants are now giving threats of dispossessing the plaintiffs from lawful possession of the suit schedule land. Hence, the plaintiffs are constrained to 10 institute the suit for a declaration of their ownership and lawful possession of the suit schedule lands and consequential perpetual injunction restraining the defendants from disturbing the plaintiff's peaceful possession.
5. In pursuance of the suit summons, defendant No.1 appeared and filed the written statement and defendants 2 and 3 adopted the written statement of defendant No.1.
6. In the written statement they have denied the very contentions of the plaintiffs claiming the ownership as well as lawful possession. However, it is admitted that defendants' and their ancestors' names have been shown as Inamdaars having right over the suit lands as Inamdaars as per the provisions of the Bombay Paragana and Kulkarni (Watan) Act, and Bombay Hereditary Offices Act. They also denied the very possession of the plaintiffs in respect of the suit schedule land. It is contended that the interpretation of Sections 3 and 4 of the Bombay Paragana and Kulkarni Watan Abolition Act made by the 11 plaintiffs is completely wrong and misconceived and the very claim of the plaintiffs that their ancestors are lawful owners shown below the line in the revenue records under the Bombay Land Revenue Act and Land Revenue Manual and they are the owners, has been denied. The very contention that plaintiffs' names have been recognized as holders below the line before the Karnataka Land Revenue Act is denied.
7. It is contended in the written statement that one Raghavendra Ramaji Kulkarni was serving as a clerk under the defendants' predecessors. Hence, he was allowed to cultivate the suit land and take their income. He died in the year 1940. Thereafter, the defendants' predecessors themselves were personally cultivating the suit land in the year 1953-54. One Mallappa Fakirappa Sudi and Devendrappa Fakirappa Dharegol began to cultivate the suit land. They also died issueless. Thereafter Shivaputrappa Sangappa Desai and Shankrappa Fakirappa Sulibhavi of Pattadakal gave an application to the Land 12 Tribunal, Badami in Form No.7 for granting them occupancy rights in respect of the suit lands. Their application was rejected and their names have been deleted in the record of rights as per order in No.KLR.LT SR.200, 226 dated 28.11.1960. The defendants are in possession of the suit lands and are cultivating them personally. The plaintiffs have never putforth their claim over the suit land at any time till they approached the Tahasildar, Badami, by starting RTS proceedings in the year 1992 and the same was rejected and even appeal filed by them was dismissed. It is also contended that the suit of the plaintiffs is also not in time. The plaintiffs have filed the suit putting forth the false claim just to harass the defendants and the plaintiffs have absolutely no cause of action to file the suit.
8. The trial Court having considered the contents of the plaint and also the written statement framed the following issues:
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i) Whether the plaintiffs prove that they are the lawful owners in possession of the suit schedule land?
ii) Whether the plaintiffs are entitled for permanent injunction against the defendants?
iii) Alternatively, whether the plaintiffs are entitled for possession of the schedule land with mesne profits?
iv) Whether the plaintiffs prove that their right of ownership over the schedule land has been recognized and confirmed by the competent authority under the Bombay Paragana and Kulkarni Watan Abolition Act, so this Court has no jurisdiction to try the suit?
v) Whether the defendants prove that the
plaintiffs suit is time barred?
vi) Whether the defendants prove that they
are in possession of the suit schedule land?
9. The plaintiffs in order to prove their case, got examined one of the plaintiff as PW-1 and got marked documents Ex.P.1 to Ex.P.40 (b). On the other hand, the 1st defendant got examined himself as DW-1 and got marked documents Ex.D.1 to Ex.D.17. The trial Court after considering both oral and documentary evidence vide 14 impugned judgment dated 28.08.1998 decreed the suit in part restraining the defendants by a permanent injunction from interfering into the possession of the plaintiffs over the suit lands till they are dispossessed in accordance with law. The claim of the plaintiffs that they are the owners and declare them as owners. has been rejected. Hence, the present appeal is filed by the defendants questioning grant of permanent injunction in favour of the plaintiffs and the plaintiffs have filed the cross objection questioning rejection of their prayer for declaration.
10. The defendants/appellants in R.F.A.No.690/1998 have contended that the trial Court erred in decreeing the suit for permanent injunction mainly on the ground that the father of the appellants had admitted the possession of the plaintiffs in a land reforms case before the Land Tribunal. The trial Court failed to see that the alleged statement said to have been made by the father of the appellants in altogether at different proceedings that too in summary proceedings are inadmissible under the Evidence 15 Act. Even if it is admissible the said statements are not proved by any collateral evidence. It is contended that though the trial Court had come to the conclusion that the possession of the plaintiffs is illegal, has erred in decreeing the suit for permanent injunction contrary to law and that illegal possession should never be protected by the Court that too, against the true owners. It is also contended that when the trial Court comes to the conclusion that neither there is any document produced to show the ownership nor document of registration is produced and under the established principles of law such transactions require registration. In the absence of any documentary proof regarding ownership, the trial Court ought not to have granted the relief of permanent injunction since they claim that there is a sale agreement and they have not filed any suit seeking relief for the specific performance and hence granting of injunction is erroneous and hence, the impugned judgment and decree of the trial Court requires interference of this Court.
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11. Learned counsel for the appellants/defendants in his argument vehemently contended that when the plaintiffs have claimed that they are the owners and they are in possession and when the trial Court had come to the conclusion that they are not the owners, ought not to have granted the relief of permanent injunction. There is no dispute as the land is inaam land. The trial Court also erred in coming to the conclusion that the plaintiffs have not proved that the land is situated at Nagaral but the learned counsel would submit that the same was merged with Akkarkal village. The trial Court failed to consider the evidence of PW-1 and DW-1 in its proper perspective and in order to prove the factum of possession, no document is produced. The learned counsel would also submit that regrant was made in terms of Ex.D.1 and the same was also not disputed and the very finding of the trial Court that plaintiffs are in possession is erroneous and hence, the impugned judgment and decree requires interference of this Court.
17
12. Learned counsel appearing for the cross objectors in his argument would vehemently contend that the Court below has committed an error in holding that plaintiffs had not proved their title by producing any documentary evidence and it is the claim of the plaintiffs that the possession of the plaintiffs is very lengthy period, from time immemorial itself presumes lawful title on the ground that possession is nine points in law. The trial Court has committed an error in coming to the conclusion that the revenue records produced were of no use to prove title as revenue documents are not documents of title. While coming to such conclusion, the trial Court failed to notice that the said documents had been produced not as documents of title but as documents in support of title and possession of the suit lands and there was no reason absolutely to discard the said documents while considering the question of title. It is contended that the trial court has grossly failed in not taking note of the provisions of the Bombay Revenue Act, Bombay Land Revenue Code and the Bombay Land Revenue Manual which interpret the 18 effect and nature of the rights in respect of the names of parties shown above the line and below the line in the column relating to Patta in the revenue records.
13. The trial Court grossly erred in coming to the conclusion that after the abolition of the names under the Bombay Paragana and Kulkarni (Watan) Inams Abolition Act, 1950, the persons whose names are shown above the line in the Patta column of the revenue records have absolutely no right for regrant of the lands and therefore, their rights to collect the assessment is totally abolished that it is only the persons whose names are mentioned below the line in Patta Column of revenue records who are entitled for occupancy rights (regrant) since they are the persons in possession of the vatan lands. The trial Court ought to have noticed that in view of the fact that the plaintiffs had not claimed any right under the ancestors of the defendants and they were not claiming any rights as tenants of the land in question. It is also contended that the trial Court grossly erred in not giving a definite finding 19 in issue relating to adverse possession. The trial Court grossly erred in holding that the plaintiffs have not got the suit lands regranted in their favour till today under the provisions of the Bombay Paragana and Kulkarni (Watan) Inams Abolition Act 1950. Hence, the same requires interference of this Court.
14. Learned counsel appearing for the respondents in his argument vehemently contended that the defendants are inamdaars and plaintiffs are cultivators, tenants not evicted and after regrant of the land they have to take the possession from the Civil Court and no such possession was taken and had not filed any suit. In Ex.P.1 to Ex.P.6, the names of the plaintiffs are disclosed and the names of the plaintiffs got removed in the year 1992. The same was questioned in different forums and also in the writ petition filed before this Court and this Court directed the plaintiffs to approach the Civil Court. The trial Court failed to take note of admission of DW-1 and categorically admitted by the father of the defendants that plaintiffs are in 20 possession and the property was also sold and no documents were produced by the defendants to show that they are in possession after 1940.
15. The learned counsel in support of his argument relied upon the judgment of this Court in BAPU MALLU KHOT VS. THE DEPUTY COMMISSIONER, BELGAUM AND OTHERS (ILR 1976 KAR 92) wherein at paragraph 3 this Court has held that Section 7 of the Karnataka Village Offices Abolition Act, 1961, authorises the Deputy Commissioner to evict a person in unauthorised possession of a land which stands resumed to Government under Section 4 of the Act and to dispose of the land in favour of the unauthorised holder if he satisfied the conditions mentioned in the said section. Section 7 does not apply to a case where the land has already been regranted in favour of the holder of an office. If a person in whose favour the land is re-granted finds that a third party is in unauthorised occupation of the land in question, it is open 21 to him to approach the Civil court to pass a decree for possession against the trespasser.
16. Learned counsel referring to the above judgment would vehemently contend that the defendants have not filed any suit seeking the relief of possession and hence learned counsel would vehemently contend that this judgment is aptly applicable to the case on hand. The learned counsel also relied upon the judgment of this Court in LEHARCHAND S/O VELJI DAND SINCE DECEASED BY HIS LEGAL REPRESENTATIVES VS. GULABCHAND S/O VELJI DAND SINCE DECEASED BY HIS LEGAL REPRESENTATIVES (2015 SCC ONLINE KAR KAR 8913) wherein it has been held that if the lands were, however, re-granted to the original holders or their legal representatives, as in the case on hand, on the dates as indicated above, the legal position under the KVOA Act, is that if the re-grantee is not in possession on the date of re-grant, his remedy is to file a suit before the Civil Court for possession against a third party, who may be in 22 possession and who would be deemed to be a trespasser. It has been further held that with regard to seeking relief of possession of any property and extinguished right to property under Section 27 of the Limitation Act and such right will be extinguished when there is conferment of title to the person out of possession, the extinguishment of title under this provision, of the rightful owner- gives the trespasser a good title as against the rightful owner and any one claiming under him and the extinguished right to property comes into play.
17. Learned counsel referring to this judgment would vehemently contend that though the property was granted in favour of the defendants under regrant and their right has been extinguished since they have not filed any suit for recovery of possession and hence the trial Court ought to have granted the relief of declaration.
18. Learned counsel would also refer to the decision of the Hon'ble Apex Court in EUREKA BUILDERS AND OTHERS VS. GULABCHAND (2018) 8 SCC 23
67) regarding adverse possession, extinguishment of property rights of original lessors/owners re-granted by statute, by virtue of adverse possession of permanent lessee of original lessors/owners. Plaintiff remained in long, continuous uninterrupted open and peaceful possession of suit land with assertion of ownership, as transferee by court auction sale of permanent lessee of original watan owners of suit land, to knowledge of whole world. When the original owners failed to file suit within 12 years from the date of re-grant (even assuming the same to be valid) even their re-granted right, title or interest in suit land stood extinguished by virtue of Section 27 of the Limitation Act. The learned counsel also brought to the notice of this Court paragraphs 48 to 52 and 58 and referring to this judgment, the learned counsel would vehemently contend that the right of the defendants has been extinguished since no action was taken even after regrant of land in favour of the defendants. 24
19. Having heard the learned counsel for the appellants/defendants and also the learned counsel appearing for the cross objectors/plaintiffs and also on perusal of the records, the points that would arise for consideration of this Court are:
i) Whether the trial Court has committed an error in granting an order of injunction answering issue No.1 as affirmative in coming to the conclusion that the plaintiffs are in possession of the suit schedule properties?
ii) Whether the trial Court has committed an error in rejecting the prayer of declaration in coming to the conclusion that plaintiffs have not proved their title?
iii) What order?
Reg:Point Nos.1 and 2:
20. Having heard the learned counsel appearing for the parties and on perusal of the pleadings before the trial Court in O.S.No.103/1994 and also the written statement, it is seen that the claim of the plaintiffs is that they are the 25 joint holders and owners in possession of the suit schedule properties who have been described in the suit schedule. It is the main contention of the plaintiffs that the plaintiffs and their predecessors i.e., their ancestors have been in lawful possession and enjoyment of the suit schedule lands from time out of memory and their names have been entered in the record of rights ever since the time of settlement under the Bombay Land Revenue Act. It is also admitted in the plaint itself that defendants and their ancestors are shown above the line in the khatha as inamdaars having the right of share in the Government right of collection of assessment as alienies from the Government. It is also contended that the defendants and their predecessors in title have recognized the right of the plaintiffs and their predecessors as lawful owners in enjoyment though they were shown as inamdaars above the line and the Government also recognized the plaintiffs and their predecessors and their ancestors as being the lawful owners in possession paying assessment and are lawful since under Bombay Hereditary Offices (Vatan) Act 26 and ever since the abolition of the said Bombay Paragana and Kulkarni Inam Abolition Act, 1950. It is their claim that they are in lawful possession as owners in the vatan are not extinguished under the provisions of Section 3 of the said Bombay Paragana and Kulkarni Inam Abolition Act, 1950. It is the contention of the plaintiffs that defendants' ancestors are shown above the line as holders of alienated land and merely because of the same they are not entitled to claim any rights of re-grant and obtain an illegal order of re-grant. Admittedly, the same was questioned before the Tahsildar as well as the Assistant Commissioner and those proceedings initiated by the plaintiffs were dismissed and the writ petition was also filed before this Court and this Court directed the plaintiffs to approach the Civil Court claiming their rights. Hence, they filed the suit before the Civil Court.
21. The said suit has been resisted by the defendants denying the very contention of the plaintiffs regarding their lawful ownership as well as lawful possession. However, 27 admitted that defendants and their ancestors' names have been shown as inamdaars having right over the suit lands as inamdaars as per the Bombay Paragana and Kulkarni Inam Abolition Act 1950 and Bombay Hereditary Offices (Vatan) Act. In order to prove the case of the plaintiffs, the plaintiffs have examined the 1st plaintiff as PW-1 and PW-1 has reiterated the contents of the plaint in the affidavit and he was subjected to cross-examination. In the cross-examination, he admits that he is having acquaintance with the family of the defendants. He also admits that on 25.01.1951 as Bombay Paragana and Kulkarni Inam Abolition Act, 1950 and Bombay Hereditary Offices (Vatan) Act were abolished and also he admits that after the abolition the property vests with the State. It is suggested that after the said property was vested, Devekkavva Shivarao Desai and Basavanthrao Bhaskarrao Desai made payment equal to six times of the value of the land and got the land in their favour but the same was denied. It is suggested that till date their names are shown in the records as owners and also they are 28 cultivating and the same was also denied. He also admits that while re-granting the land he did not object the same since he was not aware of the said fact and no one informed about the same. He also admits that he did not make any application for claiming grant of the land to the Land Tribunal. He admits that in the year 1991, the defendants have given letter to remove his name below the line and in the said proceedings a favourable order was passed in favour of the defendants. But he has filed the appeal and the same was dismissed. He was also recalled and in further chief-examination he admits that in page No.194 entry in respect of Sy.No.56 which has been marked as Ex.P.35 (b) and other book is marked as Ex.P.36. He was subjected to further cross-examination and he admits that in the year 1982-83, the name of Bhimarao Desai was entered and also he admits after 1987-88, the 1st defendant's name is found. It is suggested that no entry with regard to the cultivation is made by them in any of the documents and the same was denied.
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22. The 1st defendant in his evidence claims that defendant Nos.2 and 3 are his brothers and they are the vatandaars of 7 villages and they are the owners of the suit schedule properties. It is his evidence that either the plaintiffs or their ancestors were not in possession of the suit schedule properties and no document is produced to show that they are the owners of the suit schedule properties. It is his evidence that the claim of the plaintiffs that they are the inamdaars and owners of the property is false and also the claim that they are in possession of the suit schedule properties is also false. It is his evidence that in terms of Vatan law they lost their rights. It is his further evidence that after the death of Raghavendra Ramji Kulkarnil, he started cultivating his land after 1949 and there is an entry to that effect till 1953. Mallappa Sudi and Devendrappa Naregalla were cultivating the land on their behalf and thereafter Shivaputrappa Desai and Shankreppa Sulibhavi gave Form No.7 and the same was rejected and thereafter they continued to cultivate the land and that before giving application in Form No.7 to the 30 Tahsildar, the plaintiffs did not claim that the land belonged to them. It is also his evidence that application given by the plaintiffs was rejected by the Tahsildar and they have paid Rs.6,000/- to the Government and plaintiffs were not in possession even prior to the filing of the suit and hence got marked the documents Ex.D.1 to Ex.D.14 and also the other documents Ex.D.1 to Ex.D.15. This witness was subjected to cross-examination. He admits that below the line the names of plaintiffs are entered in the revenue documents and also admits that in the year 1992 plaintiffs' names were removed. He also admits that the High Court directed the plaintiffs to approach the Civil Court and hence, the present suit is filed by the plaintiffs. He also admits that name of Karkun is found below the line from 30 to 40 years and also he admits that after 1940 he found the said name. But he cannot say when the name was entered below the line. He also admits that Shivaputrappa and Shankreppa have claimed the right as against the plaintiffs by giving Form No.7 in respect of Sy.No.56 to the extent of 8 acres and Shankreppa has 31 given the application before the Land Tribunal but he says that he did not appear in the said matter. He admits that both of them have claimed that they took the land from the plaintiffs. It is suggested that his father gave the reply in terms of Ex.P.10 stating that he gave the right in favour of the plaintiffs and that he does not know about the same. However, he admits that his father gave the reply that Shivaputrappa is cultivating the land. It is suggested that no re-grant was made in the year 1991 and the same was denied but he admits that when the names of the plaintiffs was removed, dispute arose in the year 1992. He claims that after 1940, Raghavendrarao Karkun was cultivating the land but no documents are produced to show that he gave up his rights. He also admits that they have not given the property to them and they have not produced any Sanad. He admits that the name of Desai is found in the record of rights above the line and the name of Karkun is entered below the line and when the Vatan law came into existence his grandfather's name was removed and an entry was made mentioning the 32 Government. He admits that in the year 1992 as per their application the name below the line was removed.
23. Having considered both oral and documentary evidence available on record, it is the claim of the plaintiffs that they are the joint holders and owners in possession of the suit schedule properties. The defendants and their ancestors are shown above the line in the Khatha as Inamdaars having the right of share in the Government right of collection of assessment as alienies from Government. The defendants and predecessors in title have recognized the right of the plaintiffs and their predecessors as lawful owners in enjoyment though they were shown as Inamdaars above the line and the Government also recognized plaintiffs and their predecessors and ancestors as being lawful owners in possession paying assessment and are lawful owners under the Bombay Hereditary Offices (Vatan) Act and ever since the abolition of the said Bombay Paragana and Kulkarni Inam Abolition Act, 1950. It is contended that 33 their rights have not been affected by the provisions of the special Act. Merely because the defendants' ancestors are shown above the line as holders of alienated land they were not entitled to claim any rights of re-grant under Section 4 of the said Act. It is also contended mere illegal order of re-grant in favour of defendants' ancestors do not confer any rights better than those rights which existed viz-a-viz the plaintiffs and their ancestors are lawful owners shown below the line under the system of maintaining revenue records under the Bombay Revenue Act and Land Revenue Manual. It is also contended that plaintiffs have never accepted the defendants and their predecessors as owners of the lands and their predecessors have never disputed the lawful possession since the time of memory for more than 100 years. But in the cross-examination of PW-1 he admits that Bombay Paragana and Kulkarni Inam Abolition Act and Bombay Hereditary Officers (Vatan) Act was repealed on 25.01.1951 and also he admits that in view of the same, all lands vested with the State but suggested that 34 Devekkevva Shivarao Desai and Basavanthrao Bhaskarrao Desai have made the payment in favour of the Government six times of the value of the land and got the land granted in their favour and the same was denied and also he admits that he did not object for grant in their favour but he claims that he was not aware of the same and also he admits that he did not make any application claiming grant of land to the Land Tribunal and the fact that when the names of the plaintiffs was removed, the same was challenged but the same was dismissed and this Court also directed the plaintiffs to approach the Civil Court for their rights and also in the cross-examination he admits that in the year 1982-83, the name of Bhimrao Desai was entered in the revenue documents and the same has been continued after 1987-88. The trial Court while considering the material on record comes to the conclusion that the plaintiffs are in possession of the suit schedule properties but rejected the claim of the plaintiffs for claiming their rights and to declare them as owners of the property and in the cross-examination of DW-1 also he 35 admits that names of the plaintiffs have been entered in the revenue records below the line and also admits that the same was got removed in the year 1992 and the same was questioned and also he cannot tell when the names of the plaintiffs were entered below the line. But, admits that Karkun's name was found below the line from 30 to 40 years. It is also important to note that DW-1 categorically admits that Shivaputreppa and Shankreppa have claimed their right by giving Form No.7 mentioning the names of the plaintiffs stating that they were the farmers under the plaintiffs and also he categorically admits that both of them have claimed their right under the plaintiffs and though he claims that his father has given a reply in terms of Ex.P.10 but he says that he is not aware of the same. But admits that his father gave the reply stating that Shivaputreppa is cultivating the land and in the admission of DW-1 at one breath he says that he was not aware of the contents of Ex.P.10 but in another breath he gave the reply that Shivaputreppa was cultivating the land. It is also important to note that DW-1 categorically admits that 36 he has not produced any Sanad for having given the land to them.
24. Having perused the material, it is very clear that the names of the plaintiffs were mentioned in the revenue records below the line and also on perusal of the documents it is clear that above the line names of the defendants have been entered in the revenue records. The trial Court also while considering the material on record and while giving the answer to issue No.1 comes to the conclusion that the plaintiffs are in possession but they are not in lawful possession. However, comes to the conclusion that plaintiffs are entitled for the relief of permanent injunction against the defendants unless they are dispossessed in accordance with law. It is important to note that the trial Court has taken note of Ex.P.9, Form No.7 application filed by Shivaputreppa Desai showing the plaintiffs as owners to the suit land and the same is also admitted by DW-1 and also father of DW-1 Bhimarao Desai has given the evidence before the Tribunal and evidence 37 copy is produced at Ex.P.10 wherein he has deposed that he has sold out his above line right to Smt.Akkubai Karkun and Bindurao Desai and the said persons are in possession and cultivating the suit land and having considered the same also the trial Court comes to the conclusion that the plaintiffs are in possession of the suit property but it is the contention of the defendants that the names of the defendants for the first time got entered in the year 1964- 66 and hence they cannot claim that they are in possession of the suit property. Defendant No.1 also admits that there is no Sanad or grant produced and plaintiffs also admit that there is no Sanad or grant to show that their ancestors acquired the title of the land but only they contend is that the names of the ancestors is shown below the line but the plaintiffs have also not produced any piece of material to show that now their ancestors acquired title to the suit lands. No doubt, they relied upon the record of rights since 1953 and their names are shown below the line. In the year 1961, the plaintiffs got entered their names to the suit land as the 38 second nearest legal representatives of the deceased Raghavendra Ramaji Karkun that also after 20 years. But the names of the plaintiffs below the line was found in the year 1992 and the same was got removed in the year 1992 and hence dispute arose between them and no grant was found in favour of the plaintiffs but father of the defendants got re-granted the lands in their favour and the same is also admitted by PW-1 during the cross- examination.
25. The plaintiffs mainly rely on the entries made in the record of rights and trial Court rightly comes to the conclusion that those entries made in the record of rights will not confer the title on the plaintiffs. But, DW-1 categorically admits his father was examined before the Land Tribunal and defendants' father himself has sold above line right in favour of the plaintiffs and the said evidence was given before the Land Tribunal on 12.03.1979. It is also made to know that father of the defendants admitted the possession of the plaintiffs over 39 the suit land and also admits that one Shivaputreppa has filed Form No.7 against the suit property contending that the plaintiffs are the owners of the suit property. If the defendants are owners of the suit property then Shivaputreppa who was the tenant of the defendants as contended by the defendants what made him to file Form No.7 contending that plaintiffs are the owners of the suit property is not explained by the defendants. The plaintiffs relying upon the assessment receipts which have been marked as Ex.P.15 to Ex.P.28 and these documents pertain to 1981 to 1992 and same also evidences the fact that the plaintiffs are in possession of the suit property and when the plaintiffs have placed the material before the Court that they made the payment of assessment and only their names were removed in the year 1992 but no material is placed before the Court for having title over the suit schedule property except entries found in record of rights that too below the line.
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26. The other contention of the plaintiffs in the suit is that they were in possession of the property and their uninterrupted possession is for more than 100 years and also they perfected the title by adverse possession and the trial Court also while considering this aspect in paragraph 15 discussed in detail that unless the plaintiffs admit ownership of the defendants they cannot contend that they have perfected the title by adverse possession but defendants have produced Ex.D.1 to Ex.D.12 that their right is conferred as per the Bombay Paragana and Kulkarni (Vatan) Abolition Act but the said Ex.D.1 pertains to the lands situated in Akkaragel village and not of the Nagaral S.P. But it is the contention that the same has been merged with the same village and having re- appreciated both the oral and documentary evidence available on record and also the grounds urged in both the appeal and the cross objection, the very contention of the cross-objectors/plaintiffs that the trial Court has committed an error in granting only the permanent injunction and not granted the relief of declaration, it has 41 to be noted that while decreeing the suit for the relief of declaration there must be title and in the absence of any title question of granting the declaration does not arise. The plaintiffs have to prove their case and the plaintiffs have to stand on their own legs and not depend on the weakness of the defendants and the fact that no application was filed for re-grant of land is admitted by PW-1 and when such being the case question of granting relief of declaration does not arise since no title deeds are produced and the very contention that their ancestors are owners of the property also cannot be accepted and hence the trial Court has not committed any error in granting only the relief of permanent injunction and the permanent injunction is also granted in view of coming to the conclusion that they are in possession and possession has to be disturbed only in due process of law and hence, I do not find any error committed by the trial Court in granting the relief of only permanent injunction and declining the relief of declaration. The main contention of the learned counsel for the plaintiffs is that the rights of the 42 defendants in view of the abolition of Bombay Paragana and Kulkarni (Vatan) Inams Abolition Act, 1950, above the line patta column shown no right for re-grant of the land and fails to take note of the Bombay Land Revenue Act and also the Karnataka Land Revenue Act and rights of the defendants are extinguished under Section 27 of the Limitation Act and the said contention cannot be accepted in view of admission given by P.W.-1 that no application was given for grant. The P.W.-1 also admits that after the abolition of Vatans Act, the property vests with the State. The plaintiffs ought to have made applications for grant and the same is not made. The other contention that no suit is filed for the relief of possession. But the plaintiff filed the suit in 1998 when the dispute started when the name of the plaintiffs was removed and hence the Court has to take note of facts of each case and hence the judgment relied upon the plaintiffs' counsel will not come to the aid of the plaintiffs and parties are agitating the matter before the Court.
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27. The other contention of the appellants/defendants that the Court below committed an error in granting the relief of permanent injunction is also erroneous cannot be accepted in view of the admissions elicited from the mouth of DW-1 in the cross-examination regarding possession is concerned and the material found before the Court i.e., both oral and documentary is very clear that the plaintiffs are in possession of the suit schedule properties and their names are found below the line and names of the defendants are shown above the line and the trial Court has taken note of admission given by DW-1 and also the deposition given by the father of the defendants before the Land Tribunal and the fact that grant has been made in favour of the defendants is also not in dispute and the 1st plaintiff has categorically admitted that he did not question the same but claims that it was not in his knowledge and hence the appeal filed by the appellants/defendants is also not sustainable and the trial Court has given anxious consideration to both and oral documentary evidence and appreciated the material on record and rightly comes to 44 the conclusion that the plaintiffs have proved their possession. Hence, I do not find any merit in the cross- objection as well as in the appeal filed by the defendants and hence, both are liable to be dismissed.
28. In view of the above discussions, I pass the following:
ORDER
i) The appeal in R.F.A.No.690/1998 and the Cross Objection in R.F.A.Crob.17/1998 are both dismissed.
ii) The judgment and decree dated 28.08.1998 passed by the Prl. Civil Judge, Sr.Dn. Bagalkot in O.S.No.103/1994 is confirmed.
iii) The registry is directed to send back the TCR forthwith.
No costs.
Sd/-
JUDGE Jm/-