Karnataka High Court
Shri. Motiram S/O Bhavakanna Maruche, vs Shri. Yashawant S/O Kallappa Maruche, on 2 July, 2014
Author: A.V.Chandrashekara
Bench: A.V.Chandrashekara
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RSA No.6144/2010
c/w 6152/2010
IN THE HIGH COURT OF KARNATAKA,
DHARWAD BENCH
DATED THIS THE 2ND DAY OF JULY 2014
BEFORE
THE HON'BLE MR. JUSTICE A.V.CHANDRASHEKARA
RSA No.6144/2010 (PI)
C/W
RSA No.6152/2010 (PI)
In RSA No.6144/2010 (PI)
BETWEEN
1. SHRI. MOTIRAM S/O BHAVAKANNA MARUCHE,
AGE: 80 YEARS, OCC: AGRICULTURE,
R/O KALLEHOL 591128, TQ. & DIST. BELGAUM
2. SHRI. LAXMAN S/O YASHAWANT MARUCHE
AGE: 72 YEARS, OCC: AGRICULTURE,
R/O KALLEHOL-591128, TQ. & DIST BELGAUM
3. SHRI. KRISHNA S/O YASHAWANT MARUCHE
AGE: 53 YEARS, OCC: AGRICULTURE,
R/O KALLEHOL-591128, TQ. & DIST BELGAUM
4. SRI. BABU S/O KALU MARUCHE
AGE: 58 YEARS, OCC: AGRICULTURE,
R/O KALLEHOL-591128, TQ. & DIST BELGAUM
5. SHRI. MAREPPA S/O PARASHURAM KANABARKAR
AGE: 53 YEARS, OCC: AGRICULTURE,
R/O KALLEHOL-591128, TQ. & DIST BELGAUM
... APPELLANTS
(BY SRI. M G NAGANURI : S P PATIL, ADV.)
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RSA No.6144/2010
c/w 6152/2010
AND
SHRI. YASHAWANT S/O KALLAPPA MARUCHE,
AGE: 68 YEARS, OCC: AGRICULTURE,
R/O KALLEHOL-591128, TQ. & DIST. BELGAUM
... RESPONDENT
(BY SRI. R L NALAWADE, ADV.)
RSA FILED U/SEC.100 OF CPC., AGAINST THE JUDGMENT
& DECREE DTD:21.09.2010 PASSED IN R.A.NO.757/2009 ON
THE FILE OF THE FAST TRACK COURT-I & ADDL. DISTRICT
JUDGE, BELGAUM AT BELGAUM, DISMISSING THE APPEAL,
FILED AGAINST THE JUDGMENT DTD:30.06.2005 AND THE
DECREE PASSED IN O.S.NO.150/2002 ON THE FILE OF THE III
ADDL. CIVIL JUDGE (JR.DN.) BELGAUM AT BELGAUM,
DISMISSING THE SUIT FILED FOR PERMANENT INJUNCTION.
In RSA No.6152/2010 (PI)
BETWEEN
1. MOTIRAM S/O BHAVAKANNA MARUCHE,
AGE: 80 YEARS, OCC: AGRICULTURE,
R/O KALLEHOL-591 128,
TALUK & DISTRICT: BELGAUM.
2. LAXMAN S/O YASHAWANT MARUCHE,
AGE: 72 YEARS, OCC: AGRICULTURE,
R/O KALLEHOL-591 128,
TALUK & DISTRICT: BELGAUM.
3. BABU S/O KALU MARUCHE,
AGE: 58 YEARS, OCC: AGRICULTURE,
R/O KALLEHOL-591 128,
TALUK & DISTRICT: BELGAUM.
... APPELLANT
(BY SRI./SMT : M G NAGANURI : S P PATIL )
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RSA No.6144/2010
c/w 6152/2010
AND
1. SUBASH NAGO MARUCHE,
AGE: 35 YEARS, OCC: AGRICULTURE,
R/O KALLEHOL-591 128,
TALUK & DIST: BELGAUM.
2. BALU NAGO MARUCHE,
AGE: 28 YEARS, OCC: AGRICULTURE,
R/O KALLEHOL-591 128,
TALUK & DISTRICT: BELGAUM.
3. DUDAPPA KALLAPPA MARUCHE,
AGE: 28 YEARS, OCC: AGRICULTURE,
R/O KALLEHOL-591 128,
TALUK & DISTRICT: BELGAUM.
4. SHANKAR KALLAPPA MARUCHE,
AGE: 73 YEARS, OCC: AGRICULTURE,
R/O KALLEHOL-591 128,
TALUK & DISTRICT: BELGAUM.
5. YASHAWANT KALLAPPA MARUCHE,
AGE: 70 YEARS, OCC: AGRICULTURE,
R/O KALLEHOL-591 128,
TALUK & DISTRICT: BELGAUM.
6. MARUTI KALLAPPA MARUCHE,
AGE: 58 YEARS, OCC: AGRICULTURE,
R/O KALLEHOL-591 128,
TALUK & DISTRICT: BELGAUM.
7. KRISHNA KALLAPPA MARUCHE,
AGE: 53 YEARS, OCC: AGRICULTURE,
R/O KALLEHOL-591 128,
TALUK & DISTRICT: BELGAUM.
... RESPONDENTS
RSA FILED U/SEC.100 OF CPC., AGAINST THE JUDGMENT
& DECREE DTD:21.09.2010 PASSED IN R.A.NO.726/2009 ON
4
RSA No.6144/2010
c/w 6152/2010
THE FILE OF THE FAST TRACK COURT-I & ADDL. DISTRICT
JUDGE, BELGAUM AT BELGAUM, DISMISSING THE APPEAL,
FILED AGAINST THE JUDGMENT DTD:30.06.2005 AND THE
DECREE PASSED IN O.S.NO.150/2002 ON THE FILE OF THE III
ADDL. CIVIL JUDGE (JR.DN.) BELGAUM AT BELGAUM,
DISMISSING THE SUIT FILED FOR PERMANENT INJUNCTION.
THESE APPEALS COMING ON FOR ADMISSION THIS DAY,
THE COURT DELIVERED THE FOLLOWING:
JUDGMENT
Plaintiffs of an original suit bearing O.S.No.150/2002 which was pending on the file of III Addl. Judge (Jr.Dn.) Belgaum are before this Court challenging the dismissal of their suit filed in O.S.150/2002 for relief of permanent injunction and decree suffered by them in O.S.156/2002, a suit filed by the respondents herein. Both suits had been filed for relief of permanent injunction only.
2. Parties will be referred to as per their ranking before the Trial Court in O.S.150/2002.
3. Properties in respect of which plaintiffs/appellants herein had filed suit for relief of permanent injunction are two survey numbers measuring 3.12 acres in Sy.No.239/7 and 5 RSA No.6144/2010 c/w 6152/2010 1.06 acres in Sy.No.239/8 of Kallehol Village, Belgaum. They have been described by boundaries. The respondents herein had filed a suit bearing O.S.156/2002 for the relief of permanent injunction only. The suit filed by the plaintiffs has been dismissed and suit filed by the defendants had been decreed after contest. Against the said common judgment and decree passed, two appeals under Section 96 of CPC had been filed before the FTC-I, & Addl. District Judge, Belgaum in R.A.No.757/2009 and 726/2009 respectively. Both the appeals have been dismissed. The concurrent findings of the Courts below have been called in question before this Court by the plaintiffs/appellants. Several grounds have been urged in these appeals filed under Section 100 of CPC.
4. Perused the judgments of both the Courts below. Heard the learned Counsel for the appellants in regard to admission.
6RSA No.6144/2010
c/w 6152/2010
5. According to the plaintiffs, they are owners in possession of land bearing Sy.No.239/7 measuring 3.16 acres and Sy.No.239/8 measuring 1.06 acres. According to them, mutation has been effected incorporating their names vide ME No.874. They are in lawful possession of the same and the defendants have no manner of right, title or interest over the property in question. Mutation entry bearing ME No.874 was rectified in the year 1997 and that has not been mentioned in the suit filed. At the outset, it is seen that the land in Sy.No.239 originally belonged to plaintiffs and defendants measuring in all 28.22 acres. Long back as many as 16 pot-hissas had been made by the Survey Authorities. Land in Sy.No.239/6 measures 6.33 acres.
6. What is contended before this Court by the learned Counsel for the appellants is that the pot-hissas made behind the back of the plaintiffs has been set aside in the appeal filed before the Joint Director of Land Records (JDLR) in APLSR 21/2002-03 and the same is evidenced by 7 RSA No.6144/2010 c/w 6152/2010 Ex.P-5. It is argued that when the very order of making 16 pot-hissas has been set aside by the competent authority, the defendants cannot turn around and say that they have better case than the plaintiffs. This Court cannot accept the said contention for the reason that plaintiffs have suppressed the very material fact about the filing of appeal before the JDLR in regard to pot-hissas made in the plaint. Suffice to state that though impugned order was set aside by the JDLR, it remained there on records for several years. It is to be seen that plaintiffs, who have already challenged the order of making pot-hissas long back by filing an appeal before the JDLR, should not have reached to the civil court to file a suit for the relief of injunction only.
7. Anyhow matter is now pending before competent authority i.e., Assistant Director of Land Records (ADLR). Chapter IX of Karnataka Land Revenue Act contains of Sections 106 to 113. The said chapter deals with revenue survey, division of survey numbers and partition of estates. 8 RSA No.6144/2010
c/w 6152/2010 In the light of alternative efficacious remedy available to the plaintiffs and in the light of an appeal already filed against the order to make pot hissas before the JDLR while filing suit in O.S.156/2002, the Trial Court is justified in rejecting the equitable relief of permanent injunction.
8. Accordingly, the First Appellate Court being the final court of facts, has adopted right approach to the real state of affairs in concurring with the findings of the Trial Court by giving proper and cogent reasons. Therefore, in a suit of this nature, the court is not expected to go into real question of ownership as the suits are only for the mere relief of permanent injunction only. Since the very extent and boundaries will be in question before the competent authority, there is reason to interfere with the well considered question of facts considered by the Trial Court, which has been confirmed by the First Appellate Court. In fact, the learned Judge of the Trial Court has relied upon the very important admissions culled out from the mouth of PW2 who has feigned ignorance about the exact extent of land held by 9 RSA No.6144/2010 c/w 6152/2010 plaintiffs and defendants and conversion of portion of land for non-agricultural purpose.
9. In this view of the matter, the Trial Court has not attached more importance about the revenue entries on the basis of the presumption available at Section 133 of Karnataka Land Revenue Act. No substantial question of law has arisen before this Court for consideration and there are no merits in the appeals. Hence, the appeals are liable to be dismissed as unfit for admission.
ORDER The appeals filed under Section 100 of CPC are dismissed as unfit for admission. The judgments passed by the First Appellate Court are upheld. There is no order as to costs.
Notwithsatnding the dismissal of the appeals, the parties are at liberty to agitate their grievance before the competent authority i.e., Assistant Director of Land Records, 10 RSA No.6144/2010 c/w 6152/2010 Belgaum to whom the matter has been remanded by the Joint Director of Land Records.
Office is hereby directed to send a copy of this order to Assistant Director of Land Records, Belgaum to expedite the matter and to take decision as early as possible so that the dispute between the parties could be resolved.
SD/-
JUDGE DM