Karnataka High Court
Virpax Sunandasa Barad vs Ramaswamy S/O Ranojirao Gujjar on 8 September, 2014
IN THE HIGH COURT OF KARNATAKA
DHARWAD BENCH
Dated this the 8th day of September, 2014
Before
THE HON'BLE MR JUSTICE HULUVADI G RAMESH
Regular Second Appeal 1227 / 2006
Between
Virupax Sunandasa Barad
72 yrs, R/a Jayanagar
Vidya Nagar, Hubli Appellant
(By Sri Mohan Limbikai, Av.)
And
]
1 Ramaswamy S/o Ranojirao Gujjar
By his LRs
A Shashikant S/o Ramaswamy Gujjar
50 yrs, R/a J C Nagar
Station Road, Hubli
B Anand S/o Ramesh Gujjar
38 yrs, R/a J C Nagar
Station Road, Hubli
C Shridhar S/o Ramesh Gujjar
36 yrs, R/a J C Nagar
Station Road, Hubli
2
D Vijaykumar S/o Ramesh Gujjar
34 yrs, R/a J C Nagar
Station Road, Hubli
E Meera W/o Ramesh Gujjar
60 yrs, R/a J C Nagar
Station Road, Hubli
F Chandrakant S/o Ramaswamy Gujjar
65 yrs, R/a Vishweshar Nagar
Hubli
G Suresh S/o Ramaswamy Gujjar
58 yrs, R/a J C Nagar
Station Road, Hubli
H Ganesh S/o Ramaswamy Gujjar
56 yrs, R/a J C Nagar
Station Road, Hubli
I Swati W/o Datta Gujjar, 55 yrs
R/a Ramadatta Apartment, Hubli
J Abhishekh S/o Datta Gujjar, 18 yrs
R/a Ramadatta Apartment
Keshwapur, Hubli
K Geeta W/o Suresh Rangadal, 51 yrs
R/a Ullas Nagar, District Thana
Maharashtra
L Sarala W/o Sudhir Rangadal, 48 yrs
R/a Andheri, Mumbai
M Jayashree W/o Renukaraj Mahendrakar
46 yrs, R/a Irkal, Bagalkot District
3
N Swetha W/o Vijaykumar Kamitkar
22 yrs, R/a Bangalore
O Meenakshi W/o Raju Sulake, 30 yrs
R/a Hospet, Bellary District
P Sneha W/o Jyotichandra Zindage
25 yrs, R/a Bangalore Respondents
(By Sri S L Matti, Adv. for Sri Jagadish
Patil, Adv. for R1(a-d)
Second Appeal is filed under S.100, CPC praying to set aside
the judgment dated 25.2.2006 in RA 101/2012 by the Prl. Civil Judge
(Sr.Dvn.), Hubli.
Second Appeal coming on for hearing this day, the Court
delivered the following:
JUDGMENT
Second appeal is by the 3rd defendant before the III Addl. Civil Judge (Jr.Dvn.), Hubli. Suit OS 56/1988 was filed by the plaintiff/1st respondent herein seeking for declaration and permanent injunction in respect of suit property i.e., originally RS 53 now renumbered as CTS 84/1A/1A / 1A1A, Ward III, Mariyan Timmasagar, Hubli.
As per the plaint averment, the said survey number consists two portions / plots - one is No.1A property/plot marked ABFE measuring 4 East-West 72 ft. and North-South 80 ft. and another property is 1/B plot described as EFCD measuring 72 ½ ft. East West and 80 ft. North South. It is stated, both the properties are contiguous to each other approximately measuring about 5 guntas 5 annas and 3 pies each. Survey No.53 measures 3.29 acres with CTS number stated above. The land and other house property were originally in the ownership of two brothers by name Mohammed Sab who is the deceased father of 1st defendant and Jainsab, deceased father of 2nd defendant. They were said to be tenants in common. Father of 2nd defendant filed a suit for partition and separate possession in respect of the properties in RS 53, 50, 67 and other house properties and is said to have obtained a decree. Even he obtained a final decree in his favour and also said to have obtained actual possession of the house property for his share. So far as partition is concerned, matter was transferred to the Deputy Commissioner. Meanwhile the father of 2nd defendant expired leavinb behind the 2nd defendant as his heir. It is specifically pleaded that property in Sy.No.53 continued to be in actual possession of Mohammed Sab and after his death, in possession of defendant. It is stated, though these properties were described as agricultural land, 5 they were treated as non-agricultural and several plots were developed. It is also stated, the record of rights show that these properties including the suit property was in exclusive ownership and possession of 1st defendant. It is the specific case that 1st defendant has granted suit 1A property by way of permanent lease under a registered deed dated 22.9.1959. Plaintiff was said to be inducted in actual possession of suit 1A property on the same day and also according to the plaintiff, 1st defendant has transferred the suit 1 B property under a registered permanent lease dated 28.10.1999 and also he was said to be in possession. Plaintiff has become permanent lease holder of these properties.. The entire land came to be resumed by the government under the provisions of the Karnataka Village Offices Abolition Act, 1962. Further, it is made clear that the entire land was re-granted to its lawful holder viz., 1st defendant on 5.8.1968. In view of the re-grant, 1st defendant continued to be the absolute owner of those properties. Such being the situation, 2nd defendant filed suit in OS 29/1963 against 1st defendant for possession of his half share in Sy.No.53 and other lands. By that time, suit properties were alienated to the plaintiff under a registered permanent lease deed. The 2nd 6 defendant had not made the plaintiff as a party to the said suit. Later, in collusion with 1st defendant, a consent decree was obtained. Meanwhile, the earlier decree in LC 341/1937 was rendered non-est and unenforceable. In OS 29/1963 the parties have impliedly admitted the permanent lease in favour of the plaintiff and the said decree provides an alternative relief that in the event of getting land in Sy.No.53 released then the defendant was to get 29 guntas in the said survey number in respect of his share. It is stated, such a decree obtained by the 2nd defendant is not binding on the plaintiff as it was obtained behind his back. The exact location of 29 guntas was also not given. It is the specific contention of the plaintiff that mere resumption of land by the government ipso facto extinguishes the lease hold rights in favour of the plaintiff. According to him, the provisions of the KVOA expressly safeguards the rights of the tenant. 1st defendant was competent to create a lease for any length of time till his life time and the lease deeds in favour of the plaintiff is legal and binding at least during the lifetime of 1st defendant. 2nd defendant has obtained a decree in OS 29/1963 and in Execution 234/1969 and the court has no inherent jurisdiction to execute the compromise 7 decree. Though the entire land in Sy.No.53 had been re-granted in favour of 1st defendant, factum of delivery of possession is also a sham transaction. Without plaintiff's lease hold rights being legally released, the decree in OS 29/1963 cannot be executed. Relying upon the delivery of possession of 29 guntas, 2nd defendant had obstructed the plaintiff's possession of the suit property. Then the plaintiff has filed a suit for injunction against these defendants 1 and 2 in OS 265/1971. The said suit was decreed in favour of the plaintiff. However, it is stated that appeal filed by 2nd defendant against the said judgment in RA 183/1974 came to be allowed and judgment of the lower court was set aside against which , plaintiff has preferred RSA 596/1997. For having not claimed declaration and the questions touching the operation and intervention of the Karnataka Village Offices Abolition Act, the suit was withdrawn on 29.8.1987 with liberty to file a fresh suit. However, it appears during pendency of OS 265/1971, 3rd defendant on the basis of money decree obtained against the 2nd defendant as OS 450/1975, got attached the suit property in Ex.314/1976 and brought the suit property for sale in court auction and he himself has purchased the suit property in the said auction. 8 The 3rd defendant will not acquire any right, title or interest over the same, 3rd defendant during pendency of the dispute between the plaintiff and 2nd defendant has illegally created unauthorised structure in the suit property. It is the contention of the plaintiff that after withdrawing RSA 596/1997, Limitation Act comes into picture and accordingly, sought for declaration and for permanent injunction and alternate relief of possession.
The suit was contested by 3rd defendant and defendants 1 and 2 have not appeared. In the written statement filed, it is stated, the suit properties were agricultural lands and as on 22.9.1959 and 28.10.1959 plaintiff was not an agriculturist, so the alleged permanent lease in favour of the plaintiff was invalid and not effective in law. However, the 3rd defendant was unaware of the alleged lease hold rights in favour of the plaintiff and he cannot be expected to know about the same. 3rd defendant is a bonafide purchaser for value without notice and has constructed permanent structure on the suit property by obtaining permission from the competent authority and it is to the knowledge of the plaintiff and, inaction on his part disentitles him for 9 getting any relief. Suit is between the landlord and tenant and the court has no jurisdiction to try the suit under the provisions of the Karnataka Rent Control Act, that the plaintiff has to pay the court fee on the market value of the property and the suit is barred by time under S.14 of the Limitation Act. The trial court having raised as many as ten issues for consideration, has held that plaintiff has not proved that he has permanent lease hold rights and also he failed to prove the right which prevails over the right of the defendants and also failed to prove that he is in actual possession of the suit property as on the date of the suit as a permanent lease holder. So far as prayer for relief of declaration, the same has been negated and it is also held that plaintiff is not entitled for possession. However, as to payment of court fee and other aspect are concerned, the same has been negated. On the aspect of limitation, it is held in favour of the plaintiff. So far as jurisdiction of the court is concerned, it is held that the court has got jurisdiction. As against this in the appeal filed before the Prl. Civil Judge (Sr.Dvn.), Hubli in RA 101/2002, the finding of the trial court has been reversed having raised four points for consideration. That is to say, based on Ex.P2 and P3 it is held that 1st defendant has executed 10 permanent lease itself, plaintiff is in actual and lawful possession of the suit properties as on the date of the suit and that suit is not barred by limitation. While reversing the finding of the trial court, the lower appellate court has granted the relief of declaration that plaintiff is the permanent lease holder of the suit property against the right of the defendants thereby restraining them by way of permanent injunction from interfering with the suit properties. It has also directed the 3rd defendant to deliver vacant possession of 1 gunta of south eastern portion of the plaint schedule property. As against this order, second appeal is filed.
Heard the counsel representing the parties.
The substantial questions of law re-framed are -
Whether the lower appellate court is justified in restraining defendants 1 to 3 by way of permanent injunction basing on the alleged lease hold rights;
11Whether the plaintiff is entitled for possession of the suit property which the 3rd defendant has purchased in execution of the money decree in court auction;
Whether the suit is barred by limitation;
What is the effect of the KVOA coming into force and;
By virtue of the grant in favour of the owner who is the applicant, whether plaintiff is entitled for possession and permanent lease hold right as claimed by him.
Property is said to be in the ownership of 1st defendant. There was said to be lease deed executed in favour of the plaintiff in the year 1958-59. Thereafter, the Village Office Abolition Act came into force. The effect of coming into force of the Act is, property vested with the State. So in case of lease hold rights by virtue of which whether the lease holder is entitled for possession is to be considered. In the case on hand, plaintiff has admitted possession of the property in the hands of 3rd defendant. 3rd defendant in execution of the court decree as against 2nd defendant has taken possession of it. The fact remains, so far as re-grant made in favour of 2nd defendant and 1st 12 defendant in the year 1968, then naturally if the plaintiff is a lost holder as on the date of vesting, he would be entitled for possession provided he has to file a suit for possession within limitation. Suit is shown to be filed during 1988 and suit for declaration has to be filed within three years. However, even there is lease granted by the original owners by way of permanent lease. The fact remains, by virtue of the KVO Act coming into force, land vested with the government. However, as a last holder if the plaintiff is continuing in possession, then only he is entitled for seeking possession. If according to him, he was not in possession, rather possession was granted in favour of defendants 1 and 2. More over in a separate proceedings between defendants 1 and 2 on the one hand and defendant 3, in the suit filed for money decree, in the court auction property is purchased by 3rd defendant. Might be it is a separate proceeding. But the fact remains, to rely upon the permanent lease hold right suit ought to have been filed by the plaintiff within the period of limitation as lost holder if he continued in possession. There is no material on record to show that plaintiff was in possession after the re-grant is made till the suit is filed by him. Counsel representing 13 the plaintiff/1st respondent has produced additional documents in support of his contention. However, those documents are of no help to him.
In that view of the matter, order of the lower appellate court reversing the finding of the trial court has to be set aside while answering the substantial questions of law accordingly and also holding that the suit is barred by limitation.
Appeal is allowed.
Sd/-
Judge An