Karnataka High Court
Sri T Kulle Gowda vs The State Of Karnataka on 23 November, 2018
Author: S.N.Satyanarayana
Bench: S.N.Satyanarayana
1
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 23RD DAY OF NOVEMBER, 2018
BEFORE
THE HON'BLE MR. JUSTICE S.N.SATYANARAYANA
R.S.A. No.2238/2008(DEC/INJ)
BETWEEN
SRI. T.KULLE GOWDA,
S/O DODDAIDEGOWDA, 53 YEARS
R/A HOSAHUNDAVADI VILLAGE,
BELAGOLA HOBLI,
SRIRANGAPATNA TALUK,
MANDYA DISTRICT-571 438. ... APPELLANT
(BY SRI. H.C. SHIVARAMU, ADVOCATE)
AND
1. THE STATE OF KARNATAKA
BY ITS DEPUTY COMMISSIONER
MANDYA -571 401.
2. THE DEPUTY THASILDAR
NADAKACHERI
BELAGOLA
SR PATNA TALUK- 571 438
3. SRI BASAVE GOWDA
S/O KUNNA GOWDA, 74 YEARS,
SINCE DEAD REPRESENTED BY LEGAL
REPRESENTATIVES
3(a) NAGARAJANNA,
AGED ABOUT 60 YEARS,
2
S/O LATE BASAVE GOWDA,
3(b) NANJAIAH,
AGED ABOUT 57 YEARS,
S/O LATE BASAVE GOWDA,
3(c) JAYARAM,
AGED ABOUT 54 YEARS,
S/O LATE BASAVE GOWDA,
3(d) SMT.THAYAMMA,
AGED ABOUT 46 YEARS,
D/O LATE BASAVE GOWDA,
3(e) SMT.SHIVAMMA,
AGED ABOUT 48 YEARS,
W/O KARI GOWDA,
D/O LATE BASAVE GOWDA,
3(a) to (e) ARE RESIDENTS OF
HALE HUNDAVADI VILLAGE,
ANANDUR POST,
ILAVALA HOBLI,
MYSORE TALUK AND
DISTRICT - 570 001.
4. SMT. JAYALAXMAMMA
W/O LATE CHIKKA GOWDA, 59 YEARS
HALEHUNDAVADI
ILWALA HOBLI,
MYSORE TALUK
5. SRI NANJE GOWDA
S/O LATE PUTTE GOWDA
SINCE DEAD REPRESENTED BY LEGAL
REPRESENTATIVES
5(a) SMT.KEMPAMMA,
AGED ABOUT 56 YEARS,
3
W/O LATE NANJE GOWDA,
5(b) SMT.SANNA THAYAMMA,
AGED ABOUT 44 YEARS,
W/O SHIVE GOWDA,
D/O LATE NANJE GOWDA,
5(c) NANJUNDESHWARA,
AGED ABOUT 35 YEARS,
S/O LATE NANJEGOWDA,
5(a) to (c) ARE RESIDENTS
HOSAHUNDI VILLAGE,
BELAGOLA HOBLI, KRS POST,
SRIRANGAPATNA TALUK,
MANDYA DISTRICT - 571 438.
6. SRI SOME GOWDA @ GOWDE GOWDA
(SINCE DECEASED BY HIS LRS)
(a) CHIKKATHAYAMMA
W/O LATE SOME GOWDA, 69 YEARS
(b) SWAMY GOWDA
S/O LATE SOME GOWDA, 49 YEARS
(c) CHANDRE GOWDA
S/O LATE SOME GOWDA, 46 YEARS
(d) PUTTARAMU
S/O LATE SOME GOWDA, 42 YEARS
(e) PUSHPA
DAUGHTER OF LATE SOME GOWDA
W/O HALE GOWDA, 39 YEARS
ANANDUR, ELAVALA HOBLI,
MYSORE TALUK - 570 001.
(f) JAGADISH,
SON OF LATE SOME GOWDA, 37 YEARS,
4
(g) VASANTHAMMA
D/O LATE SOME GOWDA
W/O VYARAMUDIGOWDA, 33 YEARS,
CHIKKANAHALLI VILLAGE,
ELAVAL HOBLI,
MYSORE TALUK -570 001.
(a) to (d) AND (f) ARE ALL
PERMANENT RESIDENTS OF
HALEHUNDAVADI,
ILAWALA HOBLI,
MYSORE TALUK - 570 001.
7. SRI CHALUVE GOWDA
S/O CHALUVE GOWDA, 38 YEARS,
R/A HALEHUNDAVADI,
ILAWALA HOBLI,
MYSORE TALUK-570 001.
8. SMT PUTTAMMA
W/O GOPALA GOWDA, 64 YEARS,
R/A HALEHUNDAVADI, ILAWALA HOBLI,
MYSORE TALUK -570 001.
9. SRI. SHIVALINGE GOWDA
S/O KUNNA NINGE GOWDA, 54 YEARS,
R/A HALEHUNDAVADI
ILAWALA HOBLI
MYSORE TALUK -570 001.
10. SRI. LAXME GOWDA,
FATHER'S NAME NOT KNOWN TO
THE APPELLANT
R/A HALEHUNDAVADI
ILAWALA HOBLI,
MYSORE TALUK -570 001.
11. SRI. BASAVALINGE GOWDA
S/O CHIKKAPUTTE GOWDA, 59 YEARS,
D.NO.54, N BLOCK,
5
NEAR RMP ARAVINDANAGARA,
MYSORE - 570 001.
12. SMT GAYATHRAMMA
W/O BASAVALINGE GOWDA, 54 YEARS,
R/O DOOR NO.54, N BLOCK,
NEAR RMP ARAVINDANAGARA,
MYSORE - 570 001. ... RESPONDENTS
(BY SRI DINESH RAO.N, ADDITIONAL ADVOCATE GENERAL
A/W SRI S.THAVARESH NAIK, HCGP FOR R1 & R2,
R3(a) & (d) ARE SERVED BUT UNREPRESENTED,
V/O DATED 01.07.2016 -APPEAL DISMISSED AGAINST
R3(b, c & e) and R6(f),
V/o dated 24.03.2017 R5(a to c) NOTICE HELD SUFFICIENT,
R4, R6(a to c) (e) (g), R8, R9, R11, R12 ARE SERVED BUT
UNREPRESENTED,
V/o DATED 10.03.2014, NOTICE TO R6(d) & R7 IS HELD
SUFFICENT)
THIS RSA IS FILED UNDER SECTION 100 OF CPC
AGAINST THE JUDGEMENT & DECREE DATED: 18.7.2008
PASSED IN R.A.NO.5/2007 ON THE FILE OF THE
PRL.DISTRICT JUDGE, MANDYA, DISMISSING THE
APPEAL AND CONFIRMING THE JUDGEMENT AND
DECREE DATED: 10.11.2006 PASSED IN OS.NO.44/2003
ON THE FILE OF THE ADDL.CIVIL JUDGE (SR.DN.) &
MACT, SRIRANGAPATNA.
THIS APPEAL COMING ON FOR ADMISSION THIS
DAY, THE COURT DELIVERED THE FOLLOWING:-
JUDGMENT
The plaintiff in O.S. No.44/2003 on the file of the Addl. Civil Judge (Sr.Dn) and MACT, Srirangapatna, has come up in this second appeal impugning the 6 concurrent findings of both the Courts below in dismissing his suit for the relief of declaration and injunction with reference to land bearing Sy. No.62/paiki P3 measuring 7 acres 2 guntas of Beechanakuppe village, Belagola Hobli, Srirangapatna taluk.
2. The case of the plaintiff is that suit schedule land was granted in favour of his father Doddahydegowda. According to him land bearing Sy.No.62/P3 totally measure 10 acres 3 guntas, out of which suit land measuring 7 acres 2 guntas belongs to the plaintiff and other extent of land belonges to other defendants i.e. 29 guntas to 10th defendant-Laxmegowda, which the plaintiff refers to as Sy.No.62/P1; 1 acre 10 guntas to 12th defendant- Smt.Gayathramma, which the plaintiff refers to as Sy.No.62/P2 and 1 acre 3 guntas to 11th defendant- Sri.Basavalingegowda, which the plaintiff refers to as land in Sy.No.62. It is contended that when he sought for pucca phodi Durasthi work of his land by producing all relevant 7 records, the Assistant Commissioner, Pandavapura passed an order dated 22.7.2000 to carry out durasthi work in the name of the original grantee i.e., plaintiff's father under Section 67(2) of Karnataka Land Revenue Act to an extent of 7 acres 2 guntas in Sy.No.62/P3 in Beechanakuppe village, Belagola hobli. It is further contended that 2nd defendant- Deputy Tahsildar, Nadakacheri, Belagola, who had earlier recommended for durasthi work sent adverse reports by suppressing the records and fabricating the documents to help other defendants for extraneous consideration and it is also alleged by plaintiff that officers of ADLR also supported the said act.
3. The plaintiff further contend that except plaintiff and defendants 10 to 12, the other defendants 3 to 9 have no manner of right, title or possession over any portion of land in Sy.No.62 and that the obstruction which is caused by them is without any basis and the non-cooperation by the Government officers in conducting haddubast with regard to 7 acres 2 guntas in Sy.No.62 based on the grant made to his father - Doddahydegowda, is without any basis. Hence, in 8 this background he has filed a suit for declaration and permanent injunction against defendants for declaration of his title to an extent of 7 acres 2 guntas in Sy.No.62/Paike P3 and also permanent injunction against defendant No.3 and others in the original Suit.
4. In the said Suit, defendants 5 to 9 filed written statement wherein they denied all the plaint averments. They also denied plaintiff's allegation that they are fabricating the records of suit land in collusion with second defendant. They stated that they have no title to any portion of land in Sy.No.62, simultaneously they also denied title of plaintiff to the suit land.
5. Besides defendants 5 to 9 nobody else filed any written statement i.e., defendants 10 to 12 neither accepted nor denied that they are holding lands in said Survey Number as stated by the plaintiff in the suit and also with reference to the allegations made therein regarding the said persons obstructing the peaceful possession and enjoyment 9 of plaintiff's possession i.e. in respect of Sy.No.62/P3 of Beechanakuppe village, Belagola hobli.
6. It is necessary to mention at this juncture that though in the court below, defendants No.1 and 2 were represented by learned counsel, Sri.Jayaram, there is nothing on record to show that written statement was filed on behalf of defendants 1 & 2 or that necessary documents were produced on their behalf in the court below. However, based on the material available on record, the Court below proceeded to frame the issues as under:
"1. Whether the plaintiff proves that he is the owner and in actual possession of the suit property as described in the plaint ?
2. Whether he proves the obstruction and interference by the defendants in respect of the suit property and also fabricating records in respect of the suit property as alleged ?
3. Whether he is entitled for the relief of declaration as prayed for ?
4. Whether he is entitled for the relief of permanent injunction as prayed for ?10
5. What order or decree ?"
7. Thereafter, the matter went into trial, where the plaintiff-Kullegowda, s/o Doddahydegowda, an employee of PWD adduced evidence as PW-1 and in support of his case he examined two other witnesses, PW2-Basavaraju and PW3
-M.Chauvaraju and produced as many as 16 documents to demonstrate that his father was the grantee of land to an extent of 7 acres 2 guntas in Sy.No.62 of the aforesaid village.
8. On behalf of defendants, including the State, there is no evidence either in the form of oral or documentary evidence.
9. The Court below, on appreciation of material available on record, proceeded to answer issue Nos.1 to 4 with reference to plaintiff's plea that he is the owner, in actual possession of 7 acres 2 guntas in Sy.No.62/paike P3 in Beechanakuppe village, Belagola Hobli and there is disturbance and interference by defendants 1 to 12 in enjoyment of his property by creating fabricated records and 11 as such, he is entitled for the relief of declaration and also permanent injunction, are answered in the negative and consequently the suit of the plaintiff was dismissed, against which the plaintiff preferred an appeal before the Court of Prl. District Judge, Mandya in R.A. No.5/2007, where the lower Appellate court framed the points for consideration as under:
"1. Whether there is cause of action for filing and maintaining the present suit ?
2. Whether the plaintiff is entitled to reliefs as prayed for ?
3. Whether the impugned judgment and decree call for interference in this appeal ?"
10. On re-appreciation of material available on record, the lower Appellate Court answered the issues in negative and dismissed the appeal filed by the plaintiff. As against the concurrent findings of both the Courts below, this Second Appeal is filed by the plaintiff.
11. It is for the first time when the matter came up for hearing, Sri.Kiran Kumar, learned Government Advocate 12 appearing on behalf of the State brought to the notice of this Court that there is serious error on the part of the State itself in not bringing true facts before the Court to demonstrate that there is manipulation of records from the point of plaintiff in trying to project his father as grantee of land to an extent of 7 acres 2 guntas in Sy.No.62, which he would claim as Sy.No.62/paike P3 in Beechanakuppe village, Belagola Hobli and he also sought permission of this Court to secure the original records.
12. At this juncture, this Court will have to place on record the formidable/herculean task which it had to face in securing the original records from the office of the Tahsildar, Srirangapatna taluk. As could be seen from the order sheet, an order was passed on 31.07.2017 directing the Tahsildar, Srirangapatna to produce the original records. Again on 7.09.2017 time was granted to the learned AGA to secure records from the office of the Tahsildar, Srirangapatna, which was not secured for a longtime. However, there was change in the subject assigned to this Bench, hence, this matter was listed before the then roaster Bench. 13 Thereafter from 4.10.2017 nothing progressed in this appeal till 28.10.2018. Again this matter was assigned to this Bench and matter came up for hearing on 29.10.2018, this Court called upon the learned HCGP for the State to produce all the original documents which were produced and marked as Ex.P1 to P6 in the court below and that the original records should be secured from the office of the Tahsildar. Accordingly, the matter was adjourned to 12.11.2018. Thereafter this Court called upon the Advocate General to assign this matter to a senior member in AG's Office. Thereafter on 22.11.2018 the Addl. Advocate General - Mr.Dinesh Rao, appeared and at his assurance the matter was adjourned with a direction to secure the records and to keep the Tahsildar present before the Court. It is when such an order was passed, the learned AAG secured the presence of the Tahsildar, Sri.Nagesh, who would submit that immediately on getting instructions from the office of the learned AAG, he has come along with original documents. The original documents were, at last, placed before this Court. This Court permitted the learned counsel appearing 14 for the appellant to sit along with the learned AAG and Tahsildar and look into the records and make their submission regarding correctness or otherwise of documents at Exs.P1 to P6.
13. After going through the record, learned counsel for the appellant and learned AAG appearing for the State would submit to this Court that Ex.P1 to P6 are not inconsonance with the original records available in the office of the Tahasildar. According to them, the original grant which is made available to father of appellant is only to an extent of 1 acre 3 guntas in Sy.No.62/P3 in Beechanakuppe village, Belagola hobli. However, there is small mistake in showing the number 1 (one) acre as 7 (seven) acres. When this court looked into the same with the magnifying glass, it is clearly seen that the number 1(one) is tampered to look as 7 (seven) and thereafter all the documents are prepared to suit that and are produced before the trial court in O.S.No.44/2003 to project that 7 acres 2 guntas of land is granted in favour of plaintiff's father and not 1 acre 3 guntas.
15
14. As could be seen from the original records, which is perused by the learned counsel appearing for both the parties, it is necessary to state that there is manipulation of records in both the Courts below. Though the plaintiff tried to project defendants 10 to 12 as persons who are having title to some portions of the land in Sy.No.62/P3, which he himself identified as Sy.No.62/2, 62/4 and 62/5, the said defendants have not appeared before the Court to accept that they are the owners of the said extent. In fact both the Courts below have not accepted either the pleadings or evidence of plaintiff. Some of the defendants i.e., 5 to 9 have appeared before the Court and have stated that they have got nothing to do with the suit land and that the prayer of the plaintiff that he is the owner of 7 acres 2 guntas of land is denied by them. It is seen that there is clandestine support to plaintiff by the counsel who appeared for the State in the Court below by not filing any statement and also not producing relevant document. There was clear attempt to allow the plaintiff to secure the Judgment and decree unopposed. However, it is necessary to place on record that 16 Senior Civil Judge, Srirangapatna by looking into the records has rightly rejected the prayer, which is confirmed by the lower Appellate Court. Since the plaintiff preferred this appeal before this Court in Second appeal, this Court had an opportunity to secure the original records and after looking into the same, this Court is of the considered opinion that there is an effort on the part of the plaintiff to stake claim for 7 acres 2 guntas in Sy.No.62 of Beechanakuppe village, Belagola hobli, claiming that he is the owner to that extent which is referred to as Sy.No.62/Paike P3 in the revenue records, on the ground that same was granted to his father- Doddahydegowda in the year 1927.
15. With the above observation, this Court would dismiss the Second Appeal filed by plaintiff in O.S.No.44/2003 on the file of Civil Judge (Jr.Dn), Srirangapatna with a direction to the Tahsildar, who is present before the Court to ensure that 1 acre 3 guntas granted to plaintiff's father should be restored to the appellant by conducting haddubasth. So far as remaining portion out of 7 Acres 02 guntas shown in plaint schedule 17 should be taken possession by the State. While doing so, he should place the entire record along with this order before the Deputy Commissioner of Mandya to initiate appropriate proceedings with reference to fabrication of records and staking wrongful claim to government land based on the falsified record i.e. Exs.P1 to P6, which he shall do in accordance with the provisions of Land Revenue Act by giving ample opportunity to all parties who are concerned, if necessary, by issuing notice to the counsel Sri Jayram, who was appointed by defendant Nos.1 and 2 i.e., State by Deputy Commissioner and Deputy Tahasildar, Nadakacheri. Explanation of learned Advocate Sri Jayram, as to why written statement was not filed by him and why he did not secure necessary documents from his client-Deputy Commissioner and place before the Court should also be ascertained.
With this observation, the appeal is dismissed. The enquiry which is to be commenced by the Deputy Commissioner should be completed within six months from the date of receipt of copy of this order. The Deputy 18 Commissioner, Mandya, shall conduct the enquiry by issuing notice to all those who are involved in the aforesaid fraud, including the counsel appeared for State before the trial Court. The report of the enquiry shall be placed before this Court immediately therefrom. It is needless to state that by conducting haddubasth the land belonging to the government should be taken and should be shown in the report to be filed.
Sd/-
JUDGE ln.