Karnataka High Court
Sri Ramappa @ M Ramachandrappa vs Parashuramappa S/O Ramappa on 14 June, 2012
Author: A.S.Bopanna
Bench: A.S.Bopanna
1
IN THE HIGH COURT OF KARNATAKA AT
BANGALORE
DATED THIS THE 14th DAY OF JUNE 2012
BEFORE
THE HON'BLE MR. JUSTICE A.S.BOPANNA
RFA No.478/2010
c/w
RFA No.479/2010
RFA No.478/2010
BETWEEN :
SRI RAMAPPA @
M. RAMACHANDRAPPA
S/O MADAPPA,
AGED ABOUT 54 YEARS,
R/O MAYAKONDA TOWN,
DAVANAGERE TALUK,
DAVANAGERE DISTRICT-577 534 ... APPELLANT
( BY SRI M.S. HARISH KUMAR, ADV. FOR
SRI V.P. KULKARNI, ADV.)
AND :
1. PARASHURAMAPPA
S/O RAMAPPA,
AGED ABOUT 63 YEARS,
R/O MAYAKONDA VILLAGE
DAVANAGERE TALUK,
DAVANAGERE DISTRICT-577 534
2. SMT. YALLAMMA
W/O GONEPPA,
AGED ABOUT 61 YEARS,
R/O MARADI VILLAGE,
2
CHANNAGIRI TALUK,
DAVANAGERE DISTRICT-577 213
3. SMT. SANNAMMA
W/O SHIVAPPA
AGED ABOUT 59 YEARS,
R/O BADA VILLAGE
DAVANAGERE TALUK,
DAVANAGERE DISTRICT-577 001
4. SMT RAMAKKA
W/O HANUMANTHAPPA,
AGED ABOUT 55 YEARS,
R/O BADA VILLAGED
DAVANAGERE TALUK
DAVANAGERE DISTRICT-577 001
5. HANUMANTHAPPA
S/O RAMAPPA,
AGED ABOUT 53 YEARS,
R/O BADA VILLAGED
DAVANAGERE TALUK
DAVANAGERE DISTRICT-577 001
6. THE STATE OF KARNATAKA
REP. BY CHIEF SECRETARY
VIDHANA SOUDHA
DR. AMBEDKAR STREET
BANGALORE-560 001.
7. THE JOINT DIRECTOR OF
LAND RECORDS
K.R. CIRCLE
BANGALORE - 560 001
8. THE DEPUTY COMMISSIONER
DAVANAGERE DISTRICT
DAVANAGERE-577 001
9. THE DEPUTY DIRECTOR OF
LAND RECORDS
DAVANAGERE DISTRICT
DAVANAGERE-577 001
3
10. THE ASSISTANT DIRECTOR OF LAND
DAVANAGERE TALUK
DAVANAGERE-577 001
11. THE TAHASILDAR
DAVANAGERE TALUK
DAVANAGERE-577 001 ...RESPONDENTS
(BY SRI T.P. SRINIVAS AGA. FOR R6-R11
SRI P.M. SIDDAMALLAPPA, ADV. FOR
M/s MYLARAIAH ASSOCIATES FOR R5
R1 TO R4 SERVED)
THIS APPEAL IS FILED UNDER SECTION 96 OF
CPC, AGAINST THE JUDGMENT AND DECREE DATED
28.10.2009, PASSED IN O.S. NO. 4/2009 (OLD NO.303/2004)
ON THE FILE OF THE 1ST ADDITIONAL DISTRICT AND
SESSIONS JUDGE, DAVANAGERE, DECREEING THE SUIT
FOR DECLARATION, MANDATORY INJUNCTION AND
PERMANENT INJUNCTION.
RFA No.479/2010
BETWEEN :
1. SMT SIDDAMMA
W/O GUMANI MADAPPA,
AGED ABOUT 77 YEARS,
R/O MAYAKONDA TOWN,
DAVANAGERE TALUK
DAVANAGERE DISTRICT-577 534.
2. SRI RAMAPPA @
M. RAMACHANDRAPPA
S/O MADAPPA,
AGED ABOUT 54 YEARS,
R/O MAYAKONDA TOWN,
DAVANAGERE TALUK,
DAVANAGERE DISTRICT-577 534 ... APPELLANTS
( BY SRI M.S. HARISH KUMAR, ADV. FOR
SRI V.P. KULKARNI, ADV.)
4
AND :
1. PARASHURAMAPPA
S/O RAMAPPA,
AGED ABOUT 63 YEARS,
R/O MAYAKONDA VILLAGE
DAVANAGERE TALUK,
DAVANAGERE DISTRICT-577 534
2. SMT. YALLAMMA
W/O GONEPPA,
AGED ABOUT 61 YEARS,
R/O MARADI VILLAGE,
CHANNAGIRI TALUK,
DAVANAGERE DISTRICT-577 213
3. SMT. SANNAMMA
W/O SHIVAPPA
AGED ABOUT 59 YEARS,
R/O BADA VILLAGE
DAVANAGERE TALUK,
DAVANAGERE DISTRICT-577 001
4. SMT RAMAKKA
W/O HANUMANTHAPPA,
AGED ABOUT 55 YEARS,
R/O BADA VILLAGED
DAVANAGERE TALUK
DAVANAGERE DISTRICT-577 001
5. HANUMANTHAPPA
S/O RAMAPPA,
AGED ABOUT 53 YEARS,
R/O BADA VILLAGED
DAVANAGERE TALUK
DAVANAGERE DISTRICT-577 001
6. SMT. SHIVAMMA
W/O THIPPANNA GOWDA,
AGED ABOUT 54 YEARS,
R/O DURGAMBIKA TEMPLE ROAD,
NITTUVALLI, DAVANAGERE-577 001
5
7. SMT. RENUKAMMA
W/O RANGAPPA MASTER
AGED ABOUT 48 YEARS,
R/O MAYAKONDA TOWN,
DAVANAGEREF TALUK,
DAVANAGERE DISTRICT-577 534
8. SMT NEELAMMA
W/O BASAPPA
AGED ABOUT 51 YEARS,
R/O HALLADAKERI, HARIHAR TOWN
DAVANAGERE DISTRICT-577 001 ...RESPONDENTS
(BY SRI P.M. SIDDAMALLAPPA, ADV. FOR
M/ S MYLARAIAH ASSTS. FOR R5
R1 TO R4 & R6 TO R8 -SERVED )
THIS APPEAL IS FILED UNDER SECTION 96 OF
CPC, AGAINST THE JUDGMENT AND DECREE DATED
28.10.2009, PASSED IN O.S. NO. 3/2009 (OLD NO.285/2003)
ON THE FILE OF THE 1ST ADDITIONAL DISTRICT AND
SESSIONS JUDGE, DAVANAGERE, DECREEING THE SUIT
FOR DECLARATION AND PERMANENT INJUNCTION.
THESE APPEALS COMING ON FOR HEARING, THIS
DAY, THE COURT DELIVERED THE FOLLOWING :
JUDGMENT
The appeal in RFA No.478/2010 is against the judgment passed in O.S.No.285/2003 (New No.3/2009). The appeal in RFA No.479/2010 is against the portion of the judgment passed in O.S.No.303/2004 (New No.4/2009). In O.S.No.285/2003, the appellants are defendant Nos. 1 and 2. In O.S.No.303/2004, the 6 appellant is the defendant No.7. The issue in both the suits relate to extent of the property to which the plaintiff in the said suit, more particularly plaintiff No.5 and defendant Nos. 1 and 2 as also defendant No.7 in the respective suits are entitled to. In the suit in O.S.No. 285/2003, the plaintiff No.5 had sought for declaration that he is the owner in respect of the suit schedule property and also for injunction against interference and dispossession. In O.S.No.303/2004, apart from seeking declaration, the plaintiff No.5 had also assailed the order dated 04.02.2004 passed by the DDLR, wherein it was ordered to interchange the extent mentioned in the Sy.Nos.224/4 and 224/5 respectively.
2. Since defendant Nos. 1 to 6 in O.S.No.303/2004 are the official defendants i.e., Government and Revenue Authorities, there would be no need to refer to the said defendants during the course of this judgment. Therefore, for the purpose of convenience, reference to the contesting respondent 7 herein would be as plaintiff and the reference to the appellants herein would be as defendants as they were arraigned as such before the Trial Court.
3. The plaintiff claims ownership in respect of the property bearing Sy.No.224/4 of Mayakonda, Davanagere, measuring 2 acres 13 guntas. In addition to the same, 7 guntas of Kharab land is available therein. The plaintiff further contends that defendant though is the owner of the property bearing No.224/5 which is adjacent land is in fact the owner of 1 acre 19 guntas. It is in that context, the plaintiff has sought for declaration that he is the owner of the said property bearing Sy.No.224/4 measuring 2 acres 13 guntas + 7 guntas of Kharab land.
4. The defendants however opposed the suit by contending that in fact the property bearing Sy.No.224/5 consists of 2 acres 13 guntas + 7 guntas of Kharab land, but has been wrongly indicated as 1 acre 19 guntas in the sale deed as also in the revenue documents and as such, 8 the same was necessary to be rectified. In that regard, it is contended that the Revenue Authorities have conducted a Survey and on noticing that the defendants in fact are in possession of 2 acres 13 guntas has ordered rectification in the Revenue documents to indicate 2 acres 13 guntas as against Sy.No.224/5 and consequently, changed the entries relating to Sy.No.224/4 indicating it as 1 acre 19 guntas. The defendants thus seeks to justify the action of the Revenue Authorities.
5. During the pendency of the first suit, since the order was passed by the DDLR altering the extent as interchange, a second suit was filed by the plaintiff and similar contentions were urged in the said suit in addition to assailing the order. The trial Court on noticing the rival contentions has framed the issues separately in both the suits, which read as hereunder: 9 O.S.No.285/2003
"1. Whether the plaintiffs prove that the 5th plaintiff is the owner in possession of the suit property bearing Sy.No.224/4 measuring 2A-13G?
2. Whether the defendants prove that they are in continuous possession and enjoyment of the land measuring 2A-13 G in Sy.No.224/5 of Mayakonda village ?
3. Whether the plaintiffs prove the alleged interference from the Defendants?
4. Whether the plaintiffs are entitled to the relief sought for?
5. For what Order or Decree ?6.
O.S.No.303/2004
1. Whether the plaintiffs prove that they are the absolute owners in possession and enjoyment of the suit property?
2. Do they further prove the alleged interference from the defendants as contended in the plaint ? 10
3. Whether the suit is hit u/s 80 of the CPC as contended by 6th defendant?
4. Whether the plaintiffs are entitled to the reliefs sought for?
5. What Decree or Order "
6. The plaintiff No.5 examined himself as P.W.1 and three other witnesses were examined as P.Ws.2 and 4 and documents at Exhs.P.1 to 32 were marked. The defendant examined himself as D.W.1, but did not choose to produce any documents and mark the same. The trial Court ultimately on analysing the evidence before it has decreed the suit in favour of the plaintiff. The contesting defendants being aggrieved by the same are before this Court in these two appeals.
7. Learned counsel for the appellants while assailing the judgment and decree would contend that the suit itself was not maintainable in view of the provisions contained in the Karnataka Land Revenue Act. It is his case that when such contention was taken 11 up in the written statement, the trial Court ought to have framed an issue in that regard and the same should have been considered. Since the same has not been done, the trial Court was not justified in considering the other issues. It is further pointed out by the learned counsel that though the trial Court had framed issues in the suit, while answering the same, the reasons do not indicate that the trial Court has answered the said issues one by one to arrive at its conclusion and therefore, the same is not sustainable. It is also his contention that the reasoning adopted by the trial Court is vague and does not disclose appropriate reasons. In any event, the trial Court could not have drawn adverse inference against the plaintiff since the copies of the said documents were already available on record and the same was sufficient for consideration. The learned counsel would further contend that when the plaintiff had questioned the order dated 04.02.2004 passed by a Revenue Authority, the trial Court ought to have dismissed the suit and relegated 12 the plaintiff to assail the said order in an appropriate forum, if at all the plaintiff was aggrieved by the same and as such, the trial Court was not justified. Even the decisions referred to have not been properly appreciated and as such, it is contended that the judgment and decree passed by the trial Court is liable to be set aside.
8. The contention of the learned Government Advocate representing the Revenue Authorities would almost support the contention of the learned counsel for the appellant to contend that the DDLR has in fact referred to the earlier sketch and passed his order which is sustainable in law and could not have been set aside by the Civil Court.
9. Learned counsel for the plaintiff would however seek to justify the order passed by the trial Court. It is his contention that in the instant case, the bar contended to be contemplated under the Land Revenue Act does not apply to the present facts. It is a 13 case where both plaintiff and defendants are claiming right to the property under different sale deeds, whereunder they have purchased the property. In the said sale deeds, the extent to which each of the parties are entitled has also been indicated which has been carried out in the Revenue records from that point in time. It is his case that only when the plaintiff was granted a share in the property, he had secured further mutation entries in that regard and had thereafter enjoyed the property in the same manner as it was existing earlier. By contending so, the learned counsel also refers to the judgment passed by the trial Court to indicate that each of the documents which had been produced by the plaintiff has been analysed by the trial Court to arrive at its conclusion. The learned counsel would contend that when the defendants have not relied on any material before the trial Court except the oral say of the defendants, the trial Court was justified and the judgment and decree does not call for interference. 14
10. In the light of the rival contentions, the question that arises for consideration at the outset is as to whether the suit was maintainable? In this regard, the learned counsel for the appellant has contended that despite there being a contention in the written statement to that effect, no issue was framed in that regard. A perusal of the written statement would indicate that no reference is made to any specific provision of law, except contending in Para 10 of the written statement that the plaintiffs without exhausting the remedy as contemplated under the Land Revenue Act have filed the suit.
11. Be that as it may, even though no issue has been framed by the trial Court, the same being a question of law, in any event to address the same it would not require adducing of evidence like in the case of mixed question of law and fact. Learned counsel for the appellant in that context has relied on the judgments of this Court in the case of 15 Patel Doddakempegowda -vs- Chikkeeregowda reported in ILR 1986 KAR 2404 and in the case of The State of Karnataka and Others -vs- Smt. H.J. Shakunthalamma reported in ILR 2007 KAR 5106. A perusal of the first of the above cited decisions would indicate that this Court with reference to Section 61(e)
(ii) of KLR Act has arrived at the conclusion that in a circumstance with regard to the Survey and revenue proceedings relating to the property, the appropriate forum is the Revenue Court and not the Civil Court.
12. In the second of the above noticed decisions, this Court on referring to the decision cited earlier has also arrived at the conclusion with regard to exclusive jurisdiction of Revenue Courts under Section 61 of the Karnataka Land Revenue Act. However, the said decision also indicates that the position would not apply to the cases arising under Section 62 and the learned Judge has stated that in that case it is not attracted. But, what requires to be noticed in the instant case is that the 16 facts herein are distinguishable from the facts therein. So far as the facts herein, the issue is with regard to the total extent of the land which has been purchased by the plaintiff and the defendants under their respective sale deeds. It is no doubt true that the defendants contend that since the actual possession of the property by them is more than what is indicated against the survey number described in the sale deed, a rectification was necessary to be made by the Revenue Authorities. Therefore, the defendants had approached the Revenue Authorities who had conducted the Survey and thereafter passed the order.
13. If the rival contentions as urged in the plaint and the written statement are taken into consideration, the issue ultimately would not be with regard to the alteration of the boundaries which have been fixed earlier, but it would be with regard to the total extent of land to be mentioned in respect of the survey number to which the parties were litigating. If this aspect of the 17 matter is kept in view, in the instant case, the dispute is between the two private parties as contemplated under Section 62 of the Act. Though in the second suit, the Government and the Revenue Authorities have been impleaded by the plaintiff, it is not one such case where the plaintiff is claiming certain property rights over the Government properties or with regard to fixation of the boundaries in accordance with the boundaries indicated in the sale deed so as to determine the extent which has been actually conveyed under the sale deed. On the other hand, it would amount to altering the boundaries as against what is shown in the sale deed as per the right owned by the Vendors.
14. Therefore, if these aspects of the matter are kept in view, in the instant case, in my opinion, the civil suit was maintainable and the Civil Court could have gone in to the said question keeping in view the totality of documents on which the parties have relied on to claim the extent of the property which has been 18 purchased and more particularly, in a situation when the same was indicated in the revenue documents from the point of time when the parties had purchased the property.
15. However, the question for consideration would be as to whether the determination of right of the parties has been appropriately considered by the trial Court. In that regard, the plaintiff had contended that the property purchased by the predecessors in title of the plaintiff is under the registered sale deed dated 14.05.1959, which was marked as Ex.P1. The said sale deed was executed by Sri Galera Hanumanthappa. Insofar as the defendants, the property was purchased under a sale deed dated 11.08.1942 and the said document was marked as Ex.P2. Though the plaintiff acquired right to the property under a registered partition deed dated 31.03.1990 which is marked as Ex.P17, if the said basic title documents are kept in view, the fact which cannot be disputed is that while describing the 19 properties which were conveyed under the said documents, the property bearing Sy.No.224/4 has been described to contain an extent of 2 acres 12 guntas excluding 7 guntas of Kharab land. The sale deed under which the defendants purchased the property describes the property as Sy.No.224/5 measuring 1 acre 19 guntas. The revenue documents would indicate that from the year 1966-67 onwards, the RTC refers to Sy.No.224/4 as measuring 2 acres 13 guntas and the said document is available at Exhs.P3 to P9. The document at Ex.P10 relates to Sy.No.224/5 which is in the name of the defendants and the extent indicated therein is 1 acre 20 guntas. Further, a sketch as at Ex.P13 also describes the extent of land as indicated in Sy.No.224/4. Therefore, the document under which the plaintiff purchased the property and the revenue documents to that extent would indicate that apart from the kharab land, the plaintiff is entitled to enjoy 2 acres 12 guntas though it is indicated as 2 acres 13 guntas in the RTC records. The defendant 20 has purchased 1 acre 19 guntas under the document and the revenue documents indicate 1 acre 20 guntas. These aspects of the matter are clear from the records which were available and has been marked before the trial Court. To the extent of the trial Court holding that an adverse inference should be drawn against the defendant for non-production of a document which the plaintiff had sought by filing an application under Order 11 Rule 12 of CPC cannot be sustained to the said extent. Therefore, from the available document, it would have to be determined as to whether still the defendant had made out a case to contend that he is actually in possession is 2 acre 13 guntas, though the sale deed describes the extent in Sy.No.224/5 as 1 acre 19 guntas with description of boundaries. The defendant contends that the same is an error and therefore, he had approached the revenue authorities in the year 2003 seeking rectification of the same. But the question is whether such change have been made at this juncture.
21
16. At the first instance, the plaintiff had already filed a suit in O.S.No.285/2003 since at that juncture what was available was only the proceedings where the defendant had approached the revenue authorities for Survey and the ultimate order as at Ex.P23 dated 04.02.2004 had not yet been passed. In that context, whether the conclusion reached by the trial Court that the revenue authorities could not have meddled with the entries at that stage needs to be considered. In the suit, the plaintiff had claimed right over the properties based on the boundaries which had been indicated in the sale deed. It is in that context, the plaintiff was before the trial Court seeking right to the said property. In the said circumstance, when the plaintiff was claiming right under a document dated 14.05.1959 and the defendant had also purchased the property under a document dated 11.08.1942, when the defendant had approached the revenue authorities for rectification in the year 2003, nearly 44 years from the date of sale deed of the plaintiff 22 had passed by and about 61 years from the date of the sale deed of the defendant had passed by and the parties had enjoyed the properties as acquired under the sale deed. Therefore, in such circumstance, when seeking of survey at that stage was deemed as an interference with the actual possession and enjoyment of the property by the plaintiff, the plaintiff in fact was justified in approaching the Civil Court and at that juncture, when the parties were litigating with that aspect of the matter, the revenue authorities ought to have withheld any further proceedings in that regard. Even though the revenue authorities were not made parties to the earlier suit, the proceedings in any event held subsequently cannot be sustained in a circumstance where the plaintiff was already before the Court seeking for a declaration with regard to the right of his extent which is purchased under the sale deed. Therefore, merely because the revenue authorities have the jurisdiction to look into the revenue entries of the documents or survey the 23 boundaries, the same could not have been lightly done by the revenue authorities in a circumstance where the parties were enjoying the properties to the extent they had purchased for more than four decades, more particularly the defendant themselves had accepted and enjoyed what was purchased under the sale deed for six decades, at that stage one of the parties could not have approached the revenue authorities claiming rectification of the extent by interchanging the same.
17. In such circumstance, even assuming for a moment that there were certain extent of property which was being enjoyed by them, the same could not have been altered by changing the boundaries or inter changing the survey numbers by the revenue authorities, but the appropriate manner would have been for the parties to seek declaration before the Civil Court with regard to the actual extent of land being enjoyed by them within the boundaries which have been described in the respective sale deed. In such circumstance, if the 24 defendant was able to establish that within the boundaries which is described in the sale deed dated 11.08.1942, in fact there is an extent of land measuring 2 acres 13 guntas, though the sale deed states that it is 1 acre 19 guntas, it would have been open for the defendant to establish that aspect before the Civil Court itself. However, the defendant had in fact approached the revenue authorities for altering the boundaries to indicate the extent of the property which is being enjoyed by him in Sy.No.224/5 and consequently, to effect the change in revenue entries so that the extent being enjoyed in Sy.No.224/5 is 2 acres 13 guntas, which is not sustainable in law. Therefore, the trial Court was justified.
18. Before parting from this judgment, the contention put forth by the learned counsel for the appellant that the issues have not been answered separately also needs to be addressed. In that regard, what is to be noticed is that though the trial Court had 25 framed issues and has indicated the same as either affirmative or negative and since the discussion for the reasons above does not refer to the specific issues, it would have to be deemed that all the issues have been clubbed and discussed together by the trial Court to arrive at the conclusion, since admittedly the issue which was relevant for consideration was with regard to the extent of property which had been purchased by the plaintiff and that burden had been cast on the plaintiff to prove that the extent of 2 acres 13 guntas was purchased under the sale deed wherein Sy.No.224/4 was indicated.
Therefore, keeping these aspects in view, I am of the opinion that the judgment and decree passed by the trial Court in any event does not call for interference. Accordingly, the appeals being devoid of merit stand dismissed. No costs.
Sd/-
JUDGE hrp/bms