Karnataka High Court
Sri. T.V. Rajshekar vs Sri.Renukaprasad H.G on 9 November, 2017
Author: B.Veerappa
Bench: B. Veerappa
1
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 09TH DAY OF NOVEMBER, 2017
BEFORE
THE HON' BLE MR. JUSTICE B. VEERAPPA
WRIT PETITION No.61749/2016(GM-CPC)
BETWEEN:
SRI. T.V. RAJSHEKAR,
S/O LATE VENKATAPPAREDDY,
AGED ABOUT 44 YEARS,
RESIDING AT NO.2288,
9TH MAIN, 1ST BLOCK, HRBR LAYOUT,
BANGALORE-560 043.
... PETITIONER
(BY SRI UDAY HOLLA, SENIOR COUNSEL FOR
SRI CHENNAKESHAVA B. S., ADVOCATE)
AND:
1. SRI.RENUKAPRASAD H.G.,
S/O GANGARAJU,
AGED ABOUT 23 YEARS,
2. SRI. MALLESHA,
S/O CHIKKANNA,
AGED ABOUT 23 YEARS,
3. SRI. SIDDARAJU,
S/O MUNIYAPPA,
AGED ABOUT 23 YEARS,
4. SRI. BASAVARAJU,
S/O NARAYANAPPA,
AGED ABOUT 29 YEARS,
2
5. SRI. CHANDRAPPA,
S/O DASAPPA,
AGED ABOUT 32 YEARS,
6. SRI. HARISHA H. S.,
S/O LATE SANJEEVACHARI
AGED ABOUT 29 YEARS,
RESPONDENTS NO.1 TO 6
RESIDING AT
HOSAHUDYA VILLAGE,
KASABA HOBLI,
DODDABALLAPURA TALUK,
7. SMT. SHANTHAMMA,
W/O LATE RAMANJINAPPA,
AGED ABOUT 58 YEARS,
8. SRI. ARUN
S/O LATE H.RAMANJINAPPA,
AGED ABOUT 36 YEARS,
RESPONDENT NO.7 AND 8
RESIDING AT NO.330, 6TH CROSS,
6TH MAIN, BAHUBALI NAGAR,
JALAHALLI, BANGALORE-560013.
9. SMT. SAROJAMMA,
D/O LATE H. HANUMANTHARAYAPPA,
AGED ABOUT 63 YEARS,
10. SRI. V. JAYASHANKAR,
S/O VEERANNA, MAJOR,
11. SRI. V. JAYARAJ,
S/O VEERANNA,
AGED ABOUT 42 YEARS,
RESPONDENT 9 TO 11
RESIDING AT JAKKURVILLAE,
3
YELAHANKA HOBLI,
BANGALORE NORTH TALUK.
12. SRI. V. NANJEGOWDA,
S/O RAMAKRISHNA,
AGED ABOUT 47 YEARS,
13. SRI. CHANNAKESHAVA,
S/O RAMAKRISHNAPPA,
AGED ABOUT 42 YEARS,
14. SRI. H. CHANDRAPPA,
S/O LATE HANUMANTHRAYAPPA,
AGED ABOUT 57 YEARS,
15. SMT. YASHODA,
W/O H. CHANDRAPPA,
AGED ABOUT 49 YEARS,
16. SMT. SOUMYA,
D/O H. CHANDRAPPA,
AGED ABOUT 27 YEARS,
17. KUM. BINDU,
D/O H. CHANDRAPPA,
AGED ABOUT 24 YEARS,
RESPONDENT NO.12-17
RESIDE AT MAJARA HOSAHALLI VILLAGE,
KASABA HOBLI, DODDABALLAPUR TALUK.
18. COMMISSIONER,
REVENUE DEPARTMENT,
DODDABALLAPUR SUB DIVISION,
DODDABALLAPUR TALUK,
BANGALORE RURAL DISTRICT.
19. DEPUTY COMMISSIONER,
BANGALORE RURAL DISTRICT,
PODIUM BLOCK, 1ST FLOOR,
4
VISHWESWARIAH TOWER,
DR. AMBEDKAR VEEDHI,
BANGALORE-560001.
20. TAHSILDAR,
DODDABALLAPUR SUB DIVISION,
DODDABALLAPUR TALUK,
BANGALORE RURAL DISTRICT.
... RESPONDENTS
(BY SRI RAGHAVENDRA KATTIMANI, ADV., FOR R1 TO R6;
SRI KARTHIK B.Y., ADVOCATE FOR R7 TO R17;
SMT. AMITHA R., HCGP FOR R18 TO R20 )
......
THIS WRIT PETITION IS FILED UNDER ARTICLES 226
AND 227 OF THE CONSTITUTION OF INDIA PRAYING TO
QUASH SETTING ASIDE THE ORDER DATED 24.9.2016
[ANENXURE-J] PASSED ON THE MEMO ANNEXURE-H
DATED 10.8.2016 THEREBY REJECTING THE SAID MEMO
FILED BY THE PLAINTIFFS R-1 TO 6 HEREIN IN
O.S.NO.247/2015 ON THE FILE OF THE CIVIL JUDGE AND
JMFC, DODDABALLAPURA BANGALORE RURAL.
THIS WRIT PETITION COMING ON FOR ORDERS THIS
DAY, THE COURT MADE THE FOLLOWING:
ORDER
The defendant No.12 filed the present writ petition against the order dated 24.09.2016 rejecting the memo dated 10.08.2016 filed by the plaintiff to dismiss the suit as withdrawn stating that the plaintiff did not wish to prosecute the suit and the same may be disposed of 5 as not pressed and further to direct the Commissioner, Revenue Department, Deputy Commissioner, Bengaluru Urban District and the Tahsildar, Doddaballapura Taluk to hold enquiry in respect of Sy.No.26 situated at Hosahudya Village, Kasaba Hobli, Doddaballapura Taluk with reference to the original records, re-grant and how gomal land was converted to inam land and on what basis and under what provisions of Act it was granted and submit a report within 15 days.
2. The respondents 1 to 6 who are the plaintiffs before the Trial Court, filed O.S.No.247/2015 for the relief of permanent injunction restraining the defendants from doing any act of waste mischief or nuisance at the suit land or putting fence to the suit land, contending that the plaintiffs are the permanent residents of the Hosahudya village, Kasaba Hobli, Doddaballapura Taluk and the land property bearing Old Sy.No.26 and New Sy.No.80 measuring to an extent 6 of 15 acres, situated at Hosahudya village, Kasaba Hobli, Doddaballapura Taluk, morefully described in the schedule, is a gomala land and it has been used by the public of the Hosahudya village, for their cattle feeding purposes for long time, including the plaintiffs. The plaintiffs further contended that the defendants are not the residents of Hosahudya village and they are not having any manner of right, title and interest over the suit schedule property and the land belongs to the Government, etc., and therefore filed suit for the relief sought for.
3. The defendants 3 to 11 filed written statement, denied the plaint averments and contended that the very suit filed by the plaintiffs is not maintainable for non-joinder of necessary parties as plaintiffs have willfully not made the State Government as party to the suit and the suit itself was not maintainable and further contended that the plaintiffs cannot assume 7 representative capacity to the "State of Karnataka" that too without making State of Karnataka a party to the proceeding. The suit is not maintainable as the same is barred by law and is attracted by the principle of res- judicata. The defendants further contended that the suit schedule property was a jodi inam land and originally belonged to one Sri Muddushastry who was the 'Inamdar' and the said late Muddushastry sold the suit schedule property to one late T. Muniyappa by way of a sale deed dated 10.06.1944. The possession of the land was also delivered to the purchaser, etc., and sought for dismissal of the suit. The defendant Nos.3 to 11 also filed an application under Order VII Rule 11 (d) r/w Section 151 of Code of Civil Procedure to reject the plaint as barred by law. The said application is also pending.
4. When the matter was posted for plaintiffs evidence, at that stage, plaintiffs filed memo dated 8 10.08.2016 stating that, the plaintiffs having read the detailed written statement, order dated 30.04.2016 passed by this Court, have learnt that the suit is not maintainable under law and the suit schedule property is not a gomala land and on the contrary, the defendants are the absolute owners of the suit schedule property. The plaintiffs herein conceded that the property is regranted to the defendants by order dated 24.05.2003 passed by the Special Deputy Commissioner, Inams Abolition and further that the defendants are in peaceful possession and enjoyment of the suit schedule property. Hence, plaintiffs did not wish to prosecute the suit and the suit may be dismissed as not pressed. The said memo was not opposed by any of the defendants.
5. The Trial Court, by the impugned order dated 24.09.2016, rejected the memo and directed the Commissioner, Revenue Department, Bengaluru Rural 9 District and the Tahsildar, Doddaballpura Taluk, to hold an enquiry and submit the report with reference to original revenue records in respect of Sy.No.26 of Hosahudya village, Kasaba Hobli, Doddaballapura Taluk, as to how the said land was re-granted, how the gomala land was converted to inam land and on what basis the land was granted and whether it is granted as per law. Hence the present writ petition is filed.
6. When the matter came up for admission on 30.10.2017, this Court heard Sri Udaya Holla, learned Senior Counsel for the petitioners and the learned Addl. Government Advocate for respondent Nos.18 to 20. Learned Senior Counsel relied upon the order passed by the Karnataka Appellate Tribunal in Appeal No.376/ 2009 filed by the original Inamdar against the order passed by the first respondent/ Deputy Commissioner dated 24.05.2003, wherein the Tribunal has categorically recorded the finding that, "the learned 10 State representative has much argued that the land in question is not an Inam land, it is a gomala land. The respondent No.1 therein has clearly held in the impugned order that the land in question is an inam land. Further, the copy of the quit-rent register, which finds a place on page No.243 of the LCR accentuates the fact that the lands situated in Hosahudya village are inam lands. Further, the name of the father of the appellant viz., Muddushastry along with others finds a place in the said register as inamdar. It is stated that the said quit-rent register is prepared in the month of June 1903. The Karnataka Appellate Tribunal further held that, nothing is found in the records to disbelieve the authentication of the register. Above all, it is the specific case of the appellant that the land in question is an inam land. Therefore, the arguments of the learned State Representative that it is not an inam land do not hold any water." Accordingly, the Tribunal dismissed the appeal holding that the appellant has no locus to 11 challenge the order dated 24.05.2003 passed by the first respondent/Deputy Commissioner, therein. It is also pointed out by the learned Senior Counsel that respondent Nos.1 to 6 who filed the present suit in O.S.No.247/2015 at para 5 stated that they and their ancestors have been using the land in dispute for grazing cattle and the property belongs to the Government. Subsequently, the Trial Court rejected the application for temporary injunction on the ground that, once the revenue authorities have passed the order for declaration that the land is not a gomal land, the Trial Court has no jurisdiction to interfere with the order of the Revenue Authorities. That is how the matter is posted today, again.
7. The respondent Nos.18 to 20 was not made party, inspite of the specific defence taken in the written statement by the defendants. When the writ petition is filed, this Court, by order dated 20.03.2017, directed 12 the petitioners to implead the revenue authorities as parties to the writ petition. That is how, the present respondent Nos.18 to 20 are made as parties and are duly represented by the learned High Court Government Pleader.
8. I have heard the learned counsel for the parties to the lis.
9. Sri Channakeshava.B.S. learned counsel for the petitioner/defendant No.12, reiterating the arguments advanced by Sri Udaya Holla, learned Senior Counsel, on 31.10.2017, contended that the Karnataka Appellate Tribunal by its order dated 21.07.2014 in Appeal No. 376/2009 filed by the original inamdar while dismissing the appeal has recorded a finding of fact that the property in question is inam land and not gomala land. The contention raised by the learned HCGP/ learned State Representative that it was not an inam land and it is a gomala land was negatived by the KAT. The said 13 order passed by the KAT has reached finality since not challenged by the State Government. Therefore, it is clear that the land is inam land and not gomala land. Therefore, the Trial Court cannot direct the revenue authorities to hold an enquiry when plaintiffs want to withdraw the suit unconditionally. Therefore, he sought to quash the impugned order passed by the Trial Court.
10. Per contra, Sri Raghavendra Kattimani, learned counsel for respondent Nos.1 to 6/ plaintiffs submits that when the plaintiffs filed memo dated 10.08.2016 seeking to withdraw the suit as not pressed, unconditionally, the Trial Court ought not to have proceeded further by dismissing the memo and therefore, sought to support the case of the petitioner.
11. Sri Karthik.B.Y. learned counsel for respondent Nos.7 to 17 also submits that the Trial Court should not have proceeded further.
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12. Smt. Anitha.R. learned High Court Government Pleader for respondent Nos.18 to 20 submits that the proposed respondents are not parties to the suit. In view of the enquiry ordered by the Trial Court, liberty may be reserved to the Government to take action in accordance with law, ultimately, if it is found that the land in question is not an inam land but is a gomala land. The submission is placed on record.
13. Having heard the learned counsel for the parties, it is not in dispute that the respondent Nos.1 to 6 who are the plaintiffs before the Trial Court, filed suit for permanent injunction under representative capacity, contending that the land in question was a gomala land and all the villagers of Hosahudya village and surrounding villages are using the land in question for grazing the cattle. It is also not in dispute that the Trial Court considering the application filed for temporary injunction and objections, by order dated 30.04.2016, 15 rejected the application holding that plaintiffs have not made out a prima-facie case to proceed against the defendants and balance of convenience is not in favour of the plaintiffs. The said order has reached finality. It is also not in dispute that the defendants filed written statement, denied that the land in question is not a gomala land and it was inam land and they are the owners in possession of the property.
14. It is also not in dispute that the plaintiffs filed memo for withdrawal of the suit unconditionally, which reads as under:
IN THE COURT OF THE CIVIL JUDGE AND JMFC AT DODDABALLAPURA O.S.NO. 247/2015 BETWEEN:
SRI. RENUKAPRASAD H.G. AND OTHERS PLAINTIFFS AND:
SMT. SHANTHAMMA AND OTHERS DEFENDANTS 16 MEMO The Plaintiffs herein respectively submit that the defendants have come on record and filed their detailed written statement. In fact the defendants have also filed an I.A. under Order 7 Rule 11 seeking dismissal of the above suit as not maintainable under law. This Hon'ble Court vide its order dated 30/04/2016 was pleased to dismiss the I.A. No.1 filed under order 39 rule 1 and 2 of CPC, thereby holding that the plaintiffs have filed to make out a prima facie case.
The Plaintiffs having read the detailed written statement, orders passed by this Hon'ble Court dated:30/04/2016 have learnt that the above suit is not maintainable under law and further learnt that the suit schedule property is no a Gomala land on the contrary the defendants are the absolute owners of the suit schedule property.
The Plaintiffs herein concede to the fact that the suit schedule property has been regranted to the defendant vide orders dated 17 24/05/2003 passed by the special deputy commissioner, Inam abolition and further that the defendants are in peaceful possession and enjoyment of the suit schedule property.
Hence the plaintiffs do not wish to prosecute the above suit and the same may be disposed off as not pressed in the interest of justice.
Sd/- Sd/-
Advocate for plaintiffs Plaintiffs
Doddaballapura
Dt: 10/08/2016
15. The said memo was not opposed by any of the defendants. The Trial Court ought to have dismissed the suit as not pressed, in view of the memo. when there is a specific finding by the Tribunal that it was an inam land and not gomala land and the Deputy Commissioner regranted 15 acres of land in favour of defendant Nos.1 to 11 on 24.05.2003. The said order also reached finality. The Trial Court ought not to have 18 directed further enquiry, in the absence of impleading the government authorities as parties to the suit. It is for the State Government to protect the land if it is gomala land.
16. In view of the aforesaid reasons, the writ petition is allowed. The impugned order passed by the Trial Court dated 24.09.2016 is quashed. The memo filed by the plaintiffs dated 10.08.2016 is allowed. The suit in O.S.No.247/2015 on the file of the Civil Judge and JMFC, Doddaballapura, Bengaluru Rural District, Bengaluru, is dismissed as not pressed.
17. Further, it is needless to observe that it is always open for respondent Nos.18 to 20 (State Authorities) to take necessary steps to protect the land in question, if it is a gomala land in accordance with law.
Sd/-
JUDGE kcm