Karnataka High Court
K. Jagadishwar vs Sharada on 16 December, 2010
Equivalent citations: AIR 2011 KARNATAKA 148, 2011 (2) AIR KANT HCR 420, (2011) 4 KANT LJ 18, (2011) 3 KCCR 1772
Author: Subhash B.Adi
Bench: Subhash B.Adi
IN T HE HIGH COURT OF KARNAT AKA AT BANGALORE
1.
BEFORE
THE HON'BLE MR.JUs'r1cE sLrBAiugsHi¢"s";;Aij1
REGULAR FIRST APPEA'L,N'(§;7651/2065
BETWEEN:
Sri.K.Jagadishw--ar
DATED THIS THE 16TH DAY OF DECEMBER..2Q:'i'4(5"'--VV
Son of K.Annapp_axyya-'__ 5 " '
Age: 60 years
Residing at No. 'v
Gokul E_Tir'si:'Stage 1.
gm Mam Rgagj _ '
New iDeyi213:éijf2ina"'P}3,lAj?a__ V
Baiigalprs _5V6f)_ 'O54. * A __
i:.Criithfarij.;;n _
Son of Aianagpayya
Age':-6_3iyea;rs =
V .No. 1 11') H;M'--.'l'[Lay0ut
.. Vishweshwar Nagar
'G.ang€.naha11i "" "
" * Bvangaibrc ~ 560 032.
i Jayaprakash
S_,/0 Atinappayya
Age: 46 years
Nvaianda House
x 'T ~._Ku1'1dapura Main Road
V' ' Kasaba Village
Kundapura Taluk --- 576 201
Mangalore Dist.
{By M/s G.S.Bhat & Assts., Sri. C:sadVéshiva:A&+: 1 "
Sri. P.T.Mura1idhar, AdVs.] A A' V. 3
AND:
1.
Ha]
Jivis
S /0 Annappayya
Age: 84 years
Res. At JDM Parking Ltd.,
2525, Dun Win Drive
12 Mississauga
Ontario. Canada
LSL IROT 905 828 0072.
Sharada
W/0 Late Narayaha-A.'A A
Since deceased byher LRS'-_ 'V
f:3__/ 0 ._M 7 KO:*'y--ar1 _ '
Age: 53 yeVa1'sf._ 1
Res'; at Return No. A
_Grou1"1'd_Fi0o.r '
.. Zakir MaI1~z1f1H A
- 'D-abour Compijnd
A : J..wr.,apaae, Bandup
':Mun%bai:¢.r400 078.
as
Vjjajaigewri
W"/:0 R.Kundar
Aged about 51 years
VA"-..ARes. at Gurukrupa
" -Fsanthosh Nagar
Munnur
Mangalore -- 576 001
1 (C)
1 (d)
Vijaya Shankar
Son of late Narayana
Age: 49 years
Res. at "Vijaya Niiaya"
VI Ward, Kanwear Singh Road
Kundapura, Kosaba Village
Kundapura Taluk -- 576 20.1"'
Mangalore Dist.
Vijayakumar ,
Son of late Narayana
Age: 47 years _
Res. at "Vijaya N.i.1zaya''A..a''''' -- L'
VI Ward, Kanwéarfiingh ;;'_P\0ad"»va
Kundapura, K0saba_Vi1iagC x AA
Manga1Qre.AD_i.st.
;
S01}0t'V~1at*e'«NVarayana "
Age:4'5.yfe_ars3"}V ' _ .
Res . , at Ma1'ia'rasht.ra'-Apex
Corporation" ; ;' --~ .__ " ~
304} Da] ma; Towrs
_ .211, Free Prca'ss;"-Jdurnal Road
.. «.{:1\/Iuznbai 4 =!_1_QvQ___Q21 .
' » _ V D.r.Ya'sh'w_anth
K1j'n.dapfur1~~Since deceased
"»By h--i"sj: LRS:
' Asha V
W'/-6 late Dr. Yashwanth Kundapura
«Age: 50 years
--=Res. at Ground Floor
"Row" Bungalow
No.1 Dewan and
Swons Housing Complex
Ambadi Road
Vasai [W] 401 202
Maharashtra
2(b) Anisha
D/0 late Dr. Yashwant Kundapura é '
Age:24 years '
Res. at Ground Floor
Row Bungalow No.1 V __
Dewan and Swons Housing
Complex, Ambadi Road 9
Vasai [W] -- 401 202
Maharashtra V
2(6) Akshya = _ v_ «V
Son of late Y:ash\nfant.,Ki1ndapura
Age:19y_ea:%s . "L _ jg
Res. at (Hoiiifid. Fiofor V' ;
Roxy B'u;1'ga};Qw " V
Dewar'; and
Comp'}eX,°AInbaod'1~wRoad '
Vasai<.[WJ--e
Maharashtra VA
3. ..«.iS}11'ee Kodachadri Hllori Mutt
. A Yédanzoge, K1ii9idapurTaIuk
" ~ _ VR£:p'., by "M_ata(:11' Pothi
Peer Somanatha J ee
g "~Agé: years, R/0 Yedamoge
Kuvndapur. ...RESPONDENTS
(Bfyo LSri...V)A}asa Rao Y.K., Adv., for R1(A&E) _ fSri§ A..Anandashetty & N Rajashekar, Acivs. _' fo_r"C,"R B,C &D, Sri. M.R.RajagopaI, Adv., for R3.) This R.F.A. is filed under Section 96 of CPC against the judgment and decree dt.5/£2005 passed in O.S.No.2/2000 on the file of the Civil Judge [Sr.Dn.} Kundapura, decreeing the suit for declaration and consequential relief of permanent injunction. This appeal is coming on for hearing Court delivered the followingh JUDGMENT'---A This appeal is by defeiitiarit Ng@,,f:i}" 2,13 8: 5 against the passed in o.s.Nc}.2/2oofovpd;{h§d~.Qs;po3..2oo5 on the file of the Civil Judge (Sr_._DI_1], would be referred as per their ranking "b.e'fopre tl'i"e.. V cou rt.
A. Sflélespondents 1 (a) to [e] are the L.Rs. of the .' original plaintiff. Respondents 2(a) to {c} are defendant C ""Nos.4[a] to {c}.
éxfl
4. Suit is one for declaration, declaring that the plaintiffs are the absolute owner of the suit property by Virtue of mulgeni agreernentif ~ 01.10. 1946 and consequential ...re__lief fof' " " it it injunction restraining the defen"dari'ts'*'lor claiming under them from ~thle_yp'eaceful "
possession and enjoyment of--t-h.e_'--slu*;t_ scheciuleiaroperty bearing Sy.No. 134/ 3 'c.er.1Lt's~..of Kundapura Kasaba village.::g'E<§.un(jli§i1V:iui*E: tlailui;.._VVe'xciuding the land covered by:' Nos.581/ 1927 8: 648}'._1942.lVV'i'*"».*~--
'Case Vniofvtheplaintiffs is that Anand Bhandari w§:is _tl1e_vown:e1*__of the suit schedule property and now it is' devolved'gj--oi'i his children. Portion of survey number flvwas helld... muligeni by Karthi Subba. it is a non- ll lli~lijagricultural and is covered by non--residential building. It; is being used for commercial purpose. The suit %'i ('4 properties are situated in Kundapur Town Municipality. It is owned by Religious institution b},?:"V"r'1-arrie Sri.Siddapeetha Kodashadri I-lalwari Mutt Village and Mattadhikari Peerreeriiféithvfarnatthp granted the schedule property in favour of the husband of No; 1._ of plaintiff Nos. 2 to 6. The .plaintiffsVe'husband is Narayana and his name on 01.10.1946. -- per year for a 1 commencing from 3o.o3.;v1947* l3lOt;tos.1956. Thereafter. muligfini re-nt at Rs.60/" per )/'tar. The muligeni yelar._:Vto..c'ornmlénce from 131 of April up to 31$ .1 it the pnextlflyelar. The deceased Narayana during paying muligeni rent regularly to the lessor. construction of the building, he was paying the erstwhile Town Panchanyath, Kundapur and e._d'1'alter--e':to Town Municipality, Kunclapur. Out of the
-southern portion, 4» cents was granted on muligeni to &fi~ one Subba, father of Narayana under a separate document registration No.58}/1927 by the aforesaid Mutt and 12 cents was granted in favour of Nagi Hengsu W/o Subba under a registered docuijhent No.648/1942. After the death of Subba Hengsu, their heirs Annappa Vfiand have '* inherited the southern portion of in joint possession of the said-._V.18 cents in f't.he.i._s«ouethern 2 L' portion of Sy.No.134./3. TheE'dei'endarits.:incoilusion with the village accountant? got entered their n'arne'sr thesuit schedule property in the revenue reco:ids'.'--.__AV'i7he said entries were made without notice itovthe plaintiffs. The entries are :,.,"~wi'thout "'iteven following the procedure against the said entries, plaintiffs preferred' and appeal before the Asst.Comrnissioner, However, the Asst.Cornmissioner dismissed
-appeal on the ground that O.S.No.432/97 is pending before the Civil Court and parties can get their 9 disputes settled before the competent civil court. Defendant No.5 made an attempt to evict the..:tVenants from the schedule property in collusion ' police by misleading the policeebyp if plaintiffs have no title to the showing the order passed fAsst..Qlomfini'ssioner. T' Therefore, the plaintiffs were"'co:I1sVtrainedlto file a suit for declaration and if permanent injunction.
65" defendant No.5 filed written statelnienft_,:"Defenciant Nos. 4 8: 12 adopted the same by fi1_i_ng_alrnen'1o.:lifljefendant no.3 did not appear andilie 'was pl'a<ied___'ex~parte. Defendants admits that plailntiffsrare governed by Hindu Mithakshara Law of inhe1'itaneéj--:_ the suit schedule property is a non~ '.v.agricu.ltu;ra14 land situated within the limits of A V~:ff"l{u;ndeapura Town Municipality. They also admit the suit schedule property belongs to religious institution- %%/~ fl 10 the Mutt referred to above. They admit that defendant No.3 has filed O.S.No/L32/97, which is pending. However, they denied that the appeal filed before the Asst.Comrnissioner wag dismissed on the ground-~--,__that the civil suit is pendfi-Ag, but the Asst.Corn'm.Vissi"oner dismissed the appeal on the ground that the plaintiffs are not appearingin"I'esp«€Ct schedule property and existenoe of mu>1i;;jer1i'* u'nderV.. document dated Ol.lO.l94€$'gisl» existed H not proved by the partie;:s'.~~4,i."further contended that has not Come into force at any Vxtinie. V property does not show the westpern in the muligeni lease. It is not . V.,...,;dvC'I1tifi5able',..thatAplaintiffs were never in possession of property and they are not entitled for deC'l;ara_tio1fi.7i2srithout seeking possession to the suit property and the Valuation madefi for the _' 'purpose of jurisdiction is also in correct.
7. Defendant N0.4~[c] filed a separate written statement alleging muligeni agreement is void not come into force at any time and-tilt'-eonterideci--a ' Annappayya had filed a declaration-in 35 Cents in Sy.No. 134/ 3 and father "plair1t_.iff. 6 N arayana himself represelnted gaire a if statement that the ent,ire =f§'pro'p_ertyll"belongs to Annappayya.
8. During the 13' plaintiff who wasp__Vth'e..Vpim*ife::v_of and since plaintiff Nos. Qfto 6 _ohi.ldren were already on record, plaintiff No.11' was_ Defendant No.4 died during the pendency Vof'---the___suit and his L.Rs. were brought on ree'0rds..Vash defendant Nos.4(a} to 4(0). 3 .the basis of these pleadings, the trial court 3 " 4" -- has L framed the following issues: ~ (1) Whether plaintiff proves that Narayana who is the husband of plaintiff no.1 «'»s>>%l
(ii)
(iii) \~.gu?!"""
and. father of plaintiff no.2 to 6 hart acquired valid title over the schedule property'?
Whether Annappayyagwthe it it Narayana was the mulgeni. tteriapnt f the entire plaint pseheéttulpe'-propet+i:y':an'dV the land adjoifi1a§"~~._the "
southern side thepreof .meanihg" in _alV1. :35 cents as eo'ntr:1f;ded 'defendants? \7\7heth¢r riiefertd; -- . pfove it that the contending at --it_h:ey of the piajnt 'se}V53ed1i'iVe' _pi:operty""" for the reasons " "no.7 of the written " and whether the same aziioiints to estoppel under iaw?
V 'tiiftxether plaintiff proves that they were 7"_'v_v.i__r1'~t;'iawfui possession of the plaint ' .vsehedule property as on the date of the institution of the suit'?
Whether plaintiffs that the entries in the record of rights in prove %>eL,--.« Col.Nos.3, 4, 9 and 10 of the plaint_,___ schedule property are Wrong whether the plaintiffs are entitled the same rectified? ll Whether the injunction is not mai.ntairiabl,e'.t.,a'rid '' (Vi) whether the fiiain'I:iffs VshQul.d_'_: i prayed for the relief. of possession?"
(vii) Whether thelszgiit has:'nct_:lbeen'_properly valued ._for the of. eourt fees =.plalint'iffs""areV§ entitled to the
-_ i'e1_ief::e 'pragzed. -the plaint'? [ix] 'What. Vordeij decree?
' Before..the trial court, plaintiff No.2 got himself examined' as PW--1 and in his evidence, he produced ' '.Exs.l7f1 On behalf of the defendants, GPA holder defendant Nos. 1 and 5 was examined as DW~l and produced EXs.Dl to D5. The trial court on pforiibiteryv' ; e-- e 7 appreciation of the evidence held that, the plaintiffs have proved that Narayana, husband of plaintiff no.1 and father of plaintiff Nos.f3j acquired his title to the suit schedule the muligeni tease and defendants failed to that Annappayya and his lbrvother 'the 'V rnuligeni tenants of entire property and the adjoining of the southern cents. It aiso further also failed to prove that from contending that they arelthle' suitwschedule property for the reason Nos. 3 & 7. However, on the basis oflthe evidence" of the plaintiffs, the trial court ;,'j'r"}+ie1t "pyiaintilffsllllhave proved that they are in suit schedule property and the suit is it _ not not seeking the relief of possession. the trial court decreed the suit for and also consequently for injunction. It is it against this judgment and decree, defendants 1 to 3 & 5 have filed this appeal. Defendant No.-4(0) who has contested the suit by filing a separate Written has not filed any appeal.
11. Learned Counsel defendant N0s.l to 3 8: V.:"3.4__.sul)lr'n_i_t'ted thata schedule property is a s0uther11:portion'of 134 / 3. It is a non--agricult.nf1~-al it helongs to Siddapeetha The husband of the deceas_eri--..:V he has been granted However, by muligeni to the extent of 5 cents, mnligeniV'lease"'2v;i;ts granted in favour of Kartha _ A the__rig'ht to collect the muligeni rent was given t.Qv"or1e"'S_hanbog Gowda Saraswathi in respect of ei1ti1~e eXtentl'l1'of 35 cents, which was in possession of ',uKarthi S1:1hha. On 23.05.1942, the Mutt executed the A V~:ff"1'3i1V1;1fl'1'ge1"1i in favour of Nagi Hengsu s/o Karthi Subba to the extent of 12 cents and on 01.10.1946. the muligeni I6 lease was granted to the extent of 17 cents in favour of Narayana, husband of 1st plaintiff. As per EXDC3, on 23.08.1974, the elder brother of Narayana i.e._,v Annappayya, father of defendants * application for grant of occupancy»~rights_;' M it it application was rejected on the that not an agricultural land. RTC " l for the period from I9.6?--68v.taindii-l'9'?8--79Atoshow that the land was cultivated by" Kundapur and in the _pi*oceediings Tribunal.
husbaridmlolf "::7j3';'?s't :'pla_intif'fRNarayan gave evidence stating has been developed and buildings have 'been constructed and it is not a illandllvvlievlying on Ex.D3, learned Counsel and D3 prove that Annappayya.
' _ the i\Iarayan was cultivating the land and his is proved by the evidence of husband of 1st p'l.ajiitiff--Narayau. Though the application was rejected, the fact remains that the evidence given by Narayana shows that it is Annappayya, who was in possession*.--._t"'--,
12. He further contended that the HRC No.6/ 89 as per EXP? in which plaintiffs were parties. Filing of t Annappayya as well as agains-t__the that both of them were in:t_t:"p:ossessio'n:{of the suit schedule property. Theztobjectiont. stattenjent filed by the respondent therein i.e.-,"' others as per EX.P(8) also t_hat.'l\{lu_Vligei1ify'viiast'granted and lessee was Construction. In the said objection stated that muligeni tenants haveibeen in possession of the properties granted. This .proye.s'th'e possession of the defendants. No doubt, dismissed by order dated 30.11.1996 fas abatedtsinee Annppayya died in 1995. The 3"' A thereafter had filed O.S.No.432 / 97 for partition against the plaintiffs and the defendants herein treating the properties as a joint family properties. He___also stated that the said suit was dismissed only of Sy.No.l34.~/ 3 holding southern portion A' family property. Against which, vfilede that was also dismissed, against the said appeal is pending. A
18. Relying on tlf1e§f'e_Adocuirientsg"iearned Counsel submitted that, . ». jfofi if plaintiff having appeared that he is in possessioi':,o:'f property. He further submitted and the evidence and dealing of'thesefproperti_es. by the parties, establishes _t.y.pthat..«.thuei"suit lnsc-he_d_u,le property was treated as joint property'/_family property and it also proves that plaintiffs aflndlefaidefendants are in joint possession. As Tsuch,' ..suu;itv for declaration and injunction is not A fniaintainable in view of the provisions of Section 34 of Specific Relief Act i.e., when the plaintiffs are not in exclusive possession and they have sought only decree for declaration without seeking relief of possession hence, the suit is liable to be dismissed or} ' ground. To support the sa1ne,v.<he»-.alsc-'_' on.'_thev.. it evidence of PW--l, wherein PW~1 ._ had not made any claim for of it on the ground that the not 3 agricultural land. that the suit 2 tenants are in possession} the name of Narayan was rc;'unVded.:vfnQf of defendants were enteredlafil {Mir Filing of HRC against the plaintiffs ._defendants is also admitted. I-Ie strongly on adrnission at para--l6 of PW--l that not raised any objection while _ construction' of RCC buildings in Sy.No.l34/3. This and the admission that Annppayyas name _' entered in the revenue records and not raising any to' 20 objection by the plaintiffs, is a clear case of the admission of the possession of the defendants.
14. To support this contention, he re1ied4..o_n.Dthe judgment of the Apex Court reported in 591 in the matter of Narasammannd others" as 9"' Karnataka and others. Re1y'ing1'_"'ion submitted that entries in ihe'~...revenue Vrecordsicaiinot * ' create any title in respect oft-th_e*1an..d in dispute, but it certainly reflects as to 'w'i'1o in] 'possession of the iand in dispu_te.:on_ "thep1ia:rn'e of the person had been eritereci-intthepreve-nue records. He aiso reiied on another.__4judgn1_e'nt Court reported in 1999(1) 5 innithve ____ arnatter of K.A.Subba Rao vs. and others. Relying on para--6 and subin'itte'd7-V'tha=t if the person is claiming his possession ',_pdefiniteiy: names should have been entered in the A ":9f'1'eVv9e'I"i_ue records and he should have paid the revenue. this regard. referring to the document Ex.D1, the evidence of P'/V-1, EXP8, EXD3 and Ex.D4, learned Counsel submitted that these material docu1ne.nts'j'«ar1-d the admission in the oral evidence has been * considered nor appreciated by the triai trial court has erroneously proceeded "to plaintiffs have established the'i_f"possessionr,V
15. He further svub.n1ittAed"th_atl 'no doubt is a power of attorney holder: cannot be discarded joizllyjon is a power of attorney. the basis of his personal l<.noWlle.dge'iand:'as' such, the evidence cannot be discarded. _court has ignored the said while'---V.giyii1g the findings. On these subrnis-sions:,llle_a1"ried Counsel prays that the judgment and ldeereelofljthe trial court required to be set aside. the other hand, Sri.Vyasa Rao, learned it llffC'.oui1.selllfor the plaintiffs submitted that muligeni lease hold rights claimed by the plaintiffs is only in respect of 17 cents on the southern portion of Sy.No. 134 / 3. Issue No.1 is as to 'whether the plaintiffs proves that Narayan. husband of 181 plaintiff and father of plaintiff Nos." 2T_to_6 had acquired valid title to the suit schedule _ the Muhgeni registered documents title; a Once the title is proved, the pos.session otherwise, the evidence on record provesVthe'possess3ion , * of not only the deceased but«];;iso by the plaintiffs. He referred'~..t'o_AE;3X.l§?'}l,'4"'th'e:'petition copy in HRC No.6/89. _ objection statementlllyto pointed out that in the objection «tiled by the respondents therein, wherein 'Annappzayya was also the respondent. ll if"has"'icatejgor'ically adrnitted the grant of Moolgeni lease lbytl Matthl¢ni'ti~~1.10.1946 and the said lease is valid. ' _ legai-«4..antl'b;i7r1ding and also admitted that respondent Nose,' 8. "to 12 therein are the sub~tenants and the e._l\/loolgeni tenants are entitled to sublet the lease hold if rights or grant or induct monthly tenants and on this ('Q 14-.) ground the HRC petition was opposed as____ not maintainable. Though, the objections are filed«jb§}f"--th*e'p plaintiffs as well as the defendants proceedings, but in the said obj'e'ct--i.on that. the lease hold rights arefilgranted Narayana and his right of leasing the said proper'ty. lnl't'h'evi_:'said_fiobjeetiorrvat para No.6 it is admitted that .ff":t'e'nants are in possession vis.~.a>=Vi_s itliszi onIy«4.th'e--.ele_s:sees under the Moolgeni lease if the defendants claim '1*i§h_t l\./ldoolgeni tenants and not otherwise, viiisofarfas' in the record of rights he subminied th'at._:'the"sa°id entry has been disputed and in d."this"'frega"1'=d "he referswfto para No.3 of the plaint and entry made without notice to the if inter"e_ste,d 'party, is not binding and cannot be held that it .creates--"any presumption of possession in favour of
-_d'efe'1ici"ants.
l7. To support his contention he relied on the decision of this Court reported in l98O [2] KL] 1629 in the matter of PAPEGOWDA vs. LAND V. PANDAVAPURA AND ORS. wherein, this"-..:Courtl' interpretation of provision to --
Revenue Act [for short referred to "Act5l»)".l. dhas that presumption arising Act is only regarding the truetintil thecontrary is proved. It doesnot presumption that person in po3sse§:sionV"--iislalVtenanlt.l'""He also relied on anotherlldlecisttgr; mlofiooo (4) KLJ 307 in the vs. }3.N. matter «of «Vv_"¥.?;ENté4l'PAttAMANAPPA wherein, it is held that an . .l"entV1'-ylxztitithotit notice' to the interested party is not a entry. When the defendants had ad1n«i.tted"po:ssessioI1 of the plaintiffs in their objection :jstate1ne'nt as per EX. P.8, the alleged presumption also rebutted. Ex.P.3, the entries in the Municipal "Register shows the name of the husband of first 25 plaintiff-Narayana. So also Ex.P.6 and Ex.P.9 -- dernand register clearly show the name of the fatl1'Cv}7:i"«.'l;Vli~€ husband of the first plaintiff. The ' agricultural property used for non resid'entia1../Itpurpose._ it and that entries in Exs.P.3, establish that the property'--».Vp:lfw.as poss'essiVof1" and 'V enjoyment of Narayan_a...andp..after':hi's...death"it in the Possession of his heirs: upon the finding of trial the trial Court has found paid the property tax and it plaintiffs are in possession and property right from reference to Ex.D.1, the learned _ counselpsuhniitted that it is not in dispute between the parties "that the property is non agrieuiturai property is used for commercial purposes. The entry T 'referred to in Ex.D.1 relates to the agricultural iand. Admittedly the application field by Annappayya for grant of occupancy rights has been rejected as an agricultural land and as such it does * possession' nor Ex.D.4 the st.atement'_" V' Narayana establishes the possess'ion1'.of 'E1537 ._
19. He also relied on anothdet deCisio'n_Arepot;ted in 1999 (3) sec 573 in the rntatteru of V1n:4_1YA1j:aptR vs. MAN IKARAO AND ANRV where a party to the suit does. vnot:.appe'a.1*-inthe ;W1.ttness--box and states his toW':iv5»eas§§ion"oath does not offer himself for crossexaminationf-~._the~"presuInption would be that the ca-s.eLsetu byhitn not correct. In this case also . dthe V.defen'd.a11ts haxvfewnot entered the witness box and it hvofidattorney of defendant Nos. 1 and 5 has _ entered V._the,tafiIAitnesswbox. He cannot speak on behalf of H H " :jc'iefendaI'1t Nos. 1 and 5 nor he has the knowledge of the _' Case." His evidence cannot be accepted as evidence of the defendants and as such the suit has been properly decreed and does not call for interference.
20. By way of reply, learned counselt»~.4:foVr defendants 1,2,3 and 5 submitted that construction made by the defendants_and_.as' date. " "
of filing of the suit the name entered in the records anti"-as such in 9Jvie'éy"*iof the plaintiffs not being in po.ss'e.ssion, seeking only declaratory relief wiuthoutt'. the relief of possession; sutitt'isp"n.yot maintainable. He further relied on the decic{i'0n'--~.of"'«.the Division Bench of this Coi1rtA.reported._i1'1 {ll} KCCR 5 in the matter of K.A. "'slLiVe'13;5L ?RA("3..__ vs. GOWDA & ORS. and entries in the revenue records create ' _ a pre««surn'pt-ion and the said entries are continuous and if if prove the possession of the defendants. 28
21. in the light of the above submissionsgthe points that arise for consideration is as to.
1. W'hether the Judgment and A trial Court is liable to be set aside'-'o_nithe'.V if ground that the plaintiffs i411o't.Asodgli.1;_T,1 t the relief of possession?
2. Whether the *».the trial" Court that, the plai_niiffs_ their title and possesspioimgp --"1feq't:ire's to be interfered 'P V it
22.» """ "which are""no"t in dispute are that the deceased Annappayya are brothers. From the evidence}it7-,_is'~~~also not in dispute that on Moolgeni'*'*'*lease was granted in favour of Plaintiffs and defendants both adn'1itiiithat.isti_i'ti:; schedule property measuring 17 cents Sy. l\>I"o,;il34/ 3 and is a non agricultural land. This fgr;t~isjiA.'eVideneed from the proceeding in HRC No.6/ 89. also not in dispute that Mutt the namely Sri A') Siddapeeta Kodashadri Halwari Mutt, Yadamoge village, Kundapura is a lessor/ owner. The plaintiffs allege that by Virtue of grant of Moolgeni rights Narayana waslyput in possession and thereafter the plaintiffs Plaintiff Nos}, 2 to 6 succeeded to "
Narayana as survivors and they have been 'in.' p'o*sses's_ion,c .' and enjoyment of the suit schedule lpropertygg' of action for the suit according,::t0u_» thle"plaintiffs was when the defendants a.tte_1fI1pte:dvvilhtofinterfere with the possession of the plaintiffsiiorityhie rejection of their a;VjVpe"al'e' Commissioner filed against the '--entrivesA:.i;1nfad:e'"in the name of defendants. The suit is on l'E':il1.'l..Ju1y 2003 and the plaintiffs arelinllpossession and enjoyment of the The defendants apart from _ denying thclyplaintiffs' right, they claim that they are in of the suit schedule property and as such suit is not maintainable.
30
23. It is in this regard the material produced by the plaintiffs and defendants is required to be appreciated. Ex.i3'.l is a Moolgeni right granted uvndeira registered document. It is undisputedly granted"on_ly: _ favour of Narayana. However, EX.D.l relied"upon33»y 'the__l W V defendants is a record of rights for a::'period._.fromllil95f'i'::i;_tl 68 and 1978-79 in respect"of'----.§5 of No.l34/3. As against the name of Annappayya is it is not the case of both parties is cultivated by the liswladmitted that the suit prope1~t3;._jSttl' gt residential building. Thus _i_t., cannot:lbe..v'dis'puted that the suit property was llhott "cultii/Aat'ed_. Hovvever, the name of Annappayya is 'in.V".ccVolumn No.9, but on the other column it if _ is Moolgeni right. Whether Annappayya " continued" in exclusive possession or he continued in
-_p'0_sse--slsion along with plaintiffs or his possession was if under the plaintiffs, is a matter which requires to be 3! considered. EX.D.1 by itself will not prove that ___the Annappayya was in possession of non agricultural consisting of buildings, entry is the period frolii ' to 1978-79. It is also evident fronit»ExtD.Iul3M,llifflornjl.ll'\Eo;f7,':_ ll where Annappayya claims occupancy rights of entire 35 cents and it is Land Tribunal by its order at_.Ex.D;'4ltha.s'rejecte'd=the claim holding that the land lnotl land. To carry DresuIT%i3t'it#_1. the Act, in pursuance V x2\l'r:as'l'~:f3:uitiVating, is negated by Ex.3j}:i3" held that the suit properties fs7i»'--ere land and it is also not the clauimil off Aiinasppayya in Form No.7 that 1"7..'g'guntas,'lrernaining land is cultivated by tenancy over the non residential l _ build«ing,.__v' Circumstances, these entries do not _. the case of the defendant. Presurnption of entries 4:A&..j1unde1--::section 133 of the Act in respect of entries for it they are made, however admitted case of the $9:
{"7 3; ix.
1. «;
parties is that the land is not agricultural land hence such entries will have any help to prove the possession on the bases of such entries.
24. The plaintiffs have produced_.E§§s.P;3;'~ -- and 13.9. The demand register inizrespeet of building bearing Nos. 161, whir:_h'~are V building tax. Ex.P.3 is for thel"y..ear_ éimilarly for the other buildings--.,._._";F1x.ll.41.i'or..V_the«.sameH3rear also shows the na.me._of Naragrapriao. 13.6 are for the Ex.ll5.'9V'Vis for the period from l99l--92Vl.'«'l'h-ese' show that in respect of the property nurribersrvmeritioned therein, name of Narayan llhaslbeein' shown aswthe owner. The parties in their llievideneetllhaxfing?not disputed the property numbers l L shown :iv1*E§<s. R3, B4, 9.5, 9.6 and R9. It is the it eonsisterit case of both the parties that non residential l_l_pr'~__io'Liildings are constructed over the suit schedule T property and it is within the municipai town iimit. In 33 this context Exs. R7 and 8 which were relied upon' by the learned counsel for defendants shows that th.e'*.lf\:?l«a,ift*:VV had filed eviction petition not only against ~ but also against the plaintiffs andtrhe if But, what is pertinent to notenfiirtfaxéfii' description of the property -- ' has claimed eviction of tenants' $3flf_'vv.,1\lo:i134/3 measuring 35 cents. that plaintiffs are claiming of 17 cents.
It is also on" granted Moolgeni rights in to the extent of 5 cents and extent of 12 cents. The schedule of the entire extent including if the extent o'f..landdgranted to others. Plaintiffs are not 35 cents nor they are claiming as f _ theheirs__"of.Karthik Subba or Nagi Hengsu. It is in the fcfhfvidencfeof PW.1 also that apart from 17 cents of lease to Narayan, there are other grants also and if admits that in 1942 Nagi Hengsu was granted 12 J 4-3- cents and he has given the boundaries also. Further, the 17 cents granted to the deceased Narayana falls on the southern side of the said grant. It is in this context the objection statement filed by the defendants.~«in.clu__'desIfA' the property of plaintiffs also. It is common objection statement is filed in..th.eu'sa'id' e_ase;.._ is f
25. Even in the objectioni"statement, :}3xl;"i?i8VVVit is admitted that the moolagaj5f1'ill_le:§$§»"o'-granted by Peer Aithwamath Bawaji on legal and binding;This:state§rr1en'tflapproves that the grant made in favour'«of"Narayanaliajadmitted and its effect is also adrnitteclit also .v"admitted that the Moolgeni lease is The main defence of the written statement is that the Moolgeni _lease'~..V granted in favour of Narayana it had "unenforceable or not in force. In the cross 4l_l__~__eX.amination of PW.1 which is relied by the learned T V' counsel for defendants at Para 16 to show that plaintiffs 35 had not raised any objection while constructing RCC buildings. However, the next sentence of the clarifies that it was in respect of 35 cents No.l34/3. It does not amount.;to..adInission:V»hy'.4the'-_ it plaintiffs regarding possession of also not elicited in the evide11.c'e~,_as to which: of "
Sy. No. 134/ 3 the buildings wereiiconstrucftedl.for which Plaintiffs had not objected it .2 it it
26. th'eic'jplainltiffsbAclaimed declaration if it is possession or if it is proved that possession then, without seekin-*1 relief of povssessiosn only the relief of declaration . 'cannot be grantedtvwllhe trial Court on the basis of the to the conclusion that the plaintiffs _ haize«..est_ab1is'hed possession and has held that the suit V sppnmaintainable. Consideration of the entire evidence, 'Inor'e"i:so the entries till 1991432 and relating to the T 'buildings which undisputably existing on the land 36 is shows that at undisputed point of time the name of Narayana had been continued in the property and in the assessment register.
27. Per contra, the document defendants to show their 'As discussed above of 'rights-relating to 35 cents and Showing C1I1tiVat0I' which fact has, Land Tribunal to have been made before referred to in Ex.D.4 shows thatrit land. As far as the existing nature of land: is concerned, undisputedly it is a'"nonT'*agricu1turaI land and it is a commercial possession of commercial building is i _required to'b,e7\re1'ified and from the records produced by H 4.4"b;othV.pthe'*=parties, the evidence shows possession and épbenjoyiiient, either symbolic or actual shown by Narayana it :'.4:eI1j'oyed the suit properties. The entry of his name 37 shown in EXs.P.3 to R6 and P9, coupled with these, the plaintiffs have also produced the tax paid receipts at Exs.P.22 to 13.49. No doubt they relate from 1987. However, it is not the case of the defer1t'ian.ts'. * subse uentl , the came in ossession' of'"*theV" suit", it property. The documents reliedp mainly refers to the entire e§<:ter:1't._yof {viien the claim of the plaintiffs is,_very..r's'pe'cifiVc;,'lease"deed being only in respect of ffliparties having understood thatdand iris The records :'hshows:fthatfVJ'Na'rLa;y'ana._Wiiifas in possession. It clearly estabiish' tha;t',._Nar'ayana was in possession and thereafter the"piair1tiffs are in possession. There is no dpictiritra{ieiiideiice produced by the defendants to prove t11ei'r3 poss'es'siCi:1V;~' much less for the non agricultural 'Vi' property, 'e . suit properties.
it It is in these circumstances, the triai Court T --:'..:'or1"iproper appreciation of the evidence has found that the plaintiffs have established possession. If the plaintiffs have established their possession, the question of plaintiffs seeking possession as a consequential relief does not arise. It is in this regard, the judgmen;t"1*e.fcrreIkl.:Al to by the learned counsel for plaintiffs "
considered, in my opinion, the legal posif}tion.'refer1*ed__ to, .l in these decisions cannot be7di_sputed,l"however,_on the facts and evidence the -have" their possession, hence these. iildecicsionvsll'*vvilll'~not be of any assistance.
-In 'contention of the learned counsel forlplaintiffsl evidence of DW.1 is not ..v.,evideni;e in law.' In opinion, power of attorney having V"-no Vpersonal, iinlowledge of the things, if he deposes before the' be treated as a evidence of a party. _ HuoWever,l'i_)W. 1 has stated that he has knowledge. It is in circumstances, the evidences of DW.1 is lllacceptabie. But even on consideration of his evidence, it 39 will not alter the findings of the trial. court; as the oral and documentary evidence led by the plaintiffs prove the case of plaintiffs.
30. For the reasons stated above, I 3 in the appeal. Appeal fails and the same Since the parties are related arid the 'eireu-rr_is«tariees shows that no cost should be _awardeCL No in if '43:
appeal.