Karnataka High Court
Venkatappa S/O Gurappa vs Smt.Alumelamma Since Deceased By Lr ... on 10 August, 2023
Author: V Srishananda
Bench: V Srishananda
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RFA No. 1464 of 2005
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 10TH DAY OF AUGUST, 2023
BEFORE
THE HON'BLE MR JUSTICE V SRISHANANDA
REGULAR FIRST APPEAL NO.1464 OF 2005(INJ)
BETWEEN:
VENKATAPPA
S/O GURAPPA
AGED ABOUT 73 YEARS,
OCC: AGRICULTURE,
RESIDING AT HOUSE NO.198,
LAGGERE VILLAGE
YESWANTHPURA HOBLI
BANGALORE NORTH TALUK
SINCE DECEASED BY LEGAL
REPRESENTATIVES
1(a) SMT.CHINNAMMA
WIFE OF LATE SHRI VENKATAPPA
AGED ABOUT 75 YEARS
RESIDING AT #196, 1ST CROSS
KAVERINAGAR, LAGGERE
BANGALORE - 560 058.
Digitally
signed by R
MANJUNATHA
Location: 1(b) SHRI LAKSHMIDEVAMMA
HIGH COURT
OF WIFE OF LATE LAKKAPPA
KARNATAKA AGED 53 YEARS
RESIDING AT#196, 1ST CROSS,
KAVERINAGAR, LAGGERE,
BANGALORE - 560 058
1(c) KRISHNAMURTHY.L
S/O LATE LAKKAPPA
AGED 34 YEARS
RESIDING AT #196, 1ST CROSS
KAVERINAGAR, LAGGERE
BANGALORE - 560 058
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RFA No. 1464 of 2005
1(d) SUDHAKAR.L
S/O LATE LAKKAPPA
AGED 32 YEARS
RESIDING AT #196, 1ST CROSS
KAVERINAGAR, LAGGERE
BANGALORE - 560 058
1(e) SHASHIKALA
D/O LATE LAKKAPPA
AGED 31 YEARS
RESIDING AT #196, 1ST CROSS
KAVERINAGAR, LAGGERE
BANGALORE - 560 058
1(f) ANITHA .L
D/O LATE LAKKAPPA
AGED 29 YEARS
RESIDING AT #196, 1ST CROSS,
KAVERINAGAR
LAGGERE, BANGALORE - 560 058
1(g) SMT.LAVANYA
WIFE OF MR.LOKESH
AGED ABOUT 18 YEARS
RESIDING AT NO.196, 1ST CROSS
KAVERI NAGAR
LAGGERE
BANGALORE - 560 058
1(h) NANDEESH
SON OF LATE SHRI CHIKKA LAKAPPA
AGED ABOUT 15 YEARS
RESIDING AT NO.196, 1ST CROSS
KAVERINAGAR,
LAGGERE, BANGALORE - 560 058
...APPELLANTS
(BY SMT.PARVATHY R. FOR
SRI DHANANJAYA JOSHI, ADVOCATES)
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RFA No. 1464 of 2005
AND:
1. SMT. ALUMELAMMA
SINCE DECEASED BY LR
MR.P G SUDARSHAN
DEFENDRANT NO.4 & 2ND RESPONDENT
IN APPEAL.
2. P G SUDARSHAN
S/O LATE P V GOPALA IYENGAR,
MAJOR IN AGE,
MANAGER, BINNY CLOTH SHOP
R/AT NO.70, 16TH CROSS,
12TH MAIN,
MALLESWARAM,
BANGALORE.
2(a) SRI S.MADANGOPAL
SON OF LATE P.G.SUDARSHAN
AGED ABOUT 50 YEARS
R/AT NO.17, 16TH CROSS
12TH MAIN ROAD, MALLESHWARAM
BENGALURU - 560 055
2(b) SRI S RANGARAJAN
S/O LATE P.G.SUDARSHAN
AGED ABOUT 45 YEARS
R/AT NO.17, 16TH CROSS
12TH MAIN ROAD
MALLESHWARAM
BENGALURU - 560 055.
...RESPONDENTS
[BY SRI CHANDRASHEKAR FOR
SRI VIVEK HOLLA, ADVOCATES FOR R2 (a) AND (b)]
THIS REGULAR FIRST APPEAL IS FILED UNDER ORDER 41
RULE 1 R/W SECTION 96 OF CPC AGAINST THE JUDGMENT
AND DECREE DATED 22.08.05 PASSED IN O.S.NO.1527/1982
ON THE FILE OF XVII ADDL. CITY CIVIL JUDGE, BANGALORE
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RFA No. 1464 of 2005
CITY (CCH-18) DISMISSING THE SUIT FOR PERMANENT
INJUNCTION AND DECLARATION.
THIS REGULAR FIRST APPEAL COMING ON FOR FINAL
HEARING, THIS DAY, THE COURT DELIVERED THE
FOLLOWING:
JUDGMENT
Heard Miss.Parvathi, learned counsel for the appellant and Sri Chandrashekara, learned counsel appearing on behalf of Sri Vivek Holla, learned counsel for respondent Nos.2 (A) and (B).
2. Appeal is filed by the unsuccessful plaintiff challenging the validity of the judgment and decree passed in O.S.No.1527/1992 dated 22.08.2005 by the XVII Additional City Civil Judge, Bengaluru City (CCH-16).
3. Parties are referred to as plaintiff and defendants for the sake of convenience as per their original ranking in the Trial Court
4. Brief facts of the case are as under:
Plaintiff filed a suit for permanent injunction and declaration in respect of landed property bearing Sy.No.8/2, measuring 3 acres 2 guntas, Sy.No.8/3 measuring 3 acres 6 -5- NC: 2023:KHC:28443 RFA No. 1464 of 2005 guntas, Sy.No.8/4 measuring 3 acres 4 guntas in all 9 acres 12 guntas of Laggere village, Yashwanthapura Hobli, Bengaluru North Taluk and House bearing No.198, situated in Sy.No.8 of Laggere village, more fully described in para A (i), (ii) and (iii) of the plaint schedule.
5. It is contended that the suit was earlier disposed of by judgment and decree dated 11.07.2002 and the plaintiff filed an appeal before this Court in RFA No.1091/2002 and whereby, this Court allowed the appeal and remanded the suit for fresh disposal in accordance with law after giving opportunity for the plaintiff to cross-examine the defendants and their witnesses.
6. The plaint averments further reveal that the plaintiff is in continuous and uninterrupted possession of the suit property in the capacity of lawful cultivator and tenant.
Defendant Nos.1 to 3 are full sisters of defendant No.4 and their names were found in the record of rights in respect of Sy.No.8 of Laggere village. It is further contended that defendant No.4 is no way connected with the suit land and plaintiff has constructed a residential house 10 years earlier to -6- NC: 2023:KHC:28443 RFA No. 1464 of 2005 filing of the suit by investing huge amount of Rs.10,000/- and the site number is given as 198.
7. It is also contended on behalf of the plaintiff that defendant No.4 taking undue advantage of the illiteracy and ignorant nature of the plaintiff, colluded with his sisters and they tried to assert right over the suit property and unauthorizedly occupied residential house on 30.04.1982 by committing trespass. Plaintiff was constrained to file a complaint before the Metropolitan Magistrate and the same was referred to the police for investigation and filed appropriate report.
8. It is further contended that the defendants misrepresenting and concealing the true facts, managed to get initiative proceedings before the Land Tribunal to deprive the rights of the plaintiff and when he came to know the same in the year 1982, approached the Land Tribunal.
9. Further it is contended that the defendants having no right, title or interest over the suit property, were interfering with the suit property and sought for injunction. Thereafter, an -7- NC: 2023:KHC:28443 RFA No. 1464 of 2005 amendment came to be inserted by way of claiming the property over adverse possession. Subsequently the amendment was also sought to be deleted.
10. Defendant No.4 entered his appearance and filed detail written statement denying the plaintiff averments in toto and contended that he is tenant in respect of suit property.
11. The Trial court raised necessary issues as under:
1. Whether plaintiff proves that he is the absolute owner of Sy.No.8/3, 3 acres 6 guntas of land in item No.(ii) of "A" schedule property by adverse possession as alleged?
2. Whether plaintiff proves that he was in lawful possession of the suit schedule properties on the date of suit as alleged?
3. Whether plaintiff is entitled for permanent injunction sought for as alleged?
4. Whether plaintiff is entitled for the declaration sought for?
5. Whether there is no cause of action for the suit?
6. Whether the suit as brought is not maintainable as contended?
7. Whether the suit is bad for non-joinder and mis- joinder of parties?
8. To what other relief, if any, plaintiff is entitled?"-8-
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12. Thereafter, in order to discharge the burden cast on the plaintiff, plaintiff examined himself as P.W.1 and two witnesses namely; Narayan and Ramaiah as P.Ws.2 and 3. On behalf of the plaintiff as many as 35 documents were exhibited and marked as Exs.P.1 to P.35, comprising of orders in WP No. 37078/82 as Ex.P.1, Revenue assessment extract of the year 1985-86 as Ex.P.2, Assessment receipts dated 18.8.86 and 20.3.86 as Ex.P.3 & 4, Voters list of 1977 as Ex.P.5, Electoral cards as Exs.P.6 to 8, K.E.B.Bills as Exs.P.9 to 13, certified copy of the ration card extract dated 25.12.91 as Ex.P.14, Draft statements dated 18.2.88 & 27.2.91 as Exs.P.15 & 16, Carbon copy of Form No.7 under ULC Act as Ex.P.17, Form No.3 under ULC Act as Ex.P.18, Record of rights as Ex.P.19 to 23, Xerox copy of Ex.P.18 as Ex.P.24, Spot inspection dated 9.12.87 made on the Orders of the Spl. Tahsildar as Ex.P.25, Sketch as Ex.P.26, Order passed by the Spl. Dy.Commissioner dated 28.12.91 Under ULC Act as Ex.P.27, C.C of Order Sheet in the ULC Proceedings as Ex.P.28, Original Mahazar as Ex.P.29, Copy of the Order as Ex.P.30, Certified copy of the mahazar as Ex.P.31, Endorsement issued by Special Thasildar as Ex.P.32, Certified copy of the Writ Petition No.7952/04 as Ex.P.33, -9- NC: 2023:KHC:28443 RFA No. 1464 of 2005 Certified copy of the interim order as Ex.P.34, 22 photographs along with negatives as Ex.P.35 & 35(a).
13. On the contrary, on behalf of the defendants, four witnesses were examined as D.Ws.1 to 4 and defendants placed 37 documents which were exhibited and marked as Exs.D.1 to D.37 comprising of order in WP 37-78/82 dated 2.7.84 as Ex.D.1, Order in WA No.1116/86 dated 30.5.90 as Ex.D.2, Land Tribunal Order dated 17.6.1976 as Ex.D.3, Consent letter for mutation in the name of 4th Defendant as Ex.D.4, Form No.10 granted by the Land Tribunal in the name of 4th defendant as Ex.D.5, Mutation in favour of 4th defendant as Ex.D.6, Record of rights of Sy.No.8/4 for the years 1991-92 To 2000-2002 as Ex.D.7 to 11, Receipt dated 23.11.63 of Bangalore Co- Operative Land Mortgage Society dated 23.11.63 as Ex.D.12, Record of rights From 1977-78 to 198-81 as EX.D.13 & 14, Chalan for Rs.510-60 ps. Dated 10.7.75 Towards pumpset arrears charges as Ex.D.15, Application 31.12.95 for regularisation of the Unauthorised construction as Ex.D.16, Receipts dated 28.2.81, 8.10.80, 21.8.80, 1.5.80.
7.3.80 & 10.4.80 in the name of 4th defendant as Ex.D.17(a) to
(f), Orders of the Special D.C. as Ex.D.18, Complaint as
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NC: 2023:KHC:28443 RFA No. 1464 of 2005 Ex.D.19, Acknowledgment of the complaint as Ex.D.20, Complaint filed to the CMC, Dasarahalli as Ex.D.21, Copy of the FIR as Ex.D.22, Notice as Ex.D.23, Postal Receipt as Ex.D.24, Unserved RPAD cover as Ex.D.25, Copy of the acknowledgment as Ex.D.26, Copy of the complaint as Ex.D.27, Copy of the affidavit as Ex.D.28, ABC are the Annexures as Ex.D.29, Copy of the statement as Ex.D.30, RTCs as Ex.D.31 to 34, Copy of the Order sheet of VII Addl.C.M.M. in C.C.No. 13779/2004 as Ex.D.35, Certified copy of the charge sheet as Ex.D.36 and Copy of the Order of DC as Ex.D.37.
14. On conclusion of the recording of the evidence, the learned Trial Judge heard the parties in detail and found that the plaintiff is not in possession of the property and dismissed the suit of the plaintiff.
15. The unsuccessful plaintiff has filed the present appeal on the following grounds:
The Court below has acted in the exercise of its Jurisdiction with material irregularity. If the judgment is allowed to remain, it would occasion a failure of Justice and cause irreparable injury to the Appellant. The errors contemplated relate to the breach of provisions of law and to material defects of procedure affecting the
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NC: 2023:KHC:28443 RFA No. 1464 of 2005 ultimate decision. The Impugned judgment is manifestly erroneous and perverse and particularly the occurs adopted by the lower court. ignoring its own finding on issue No.1, while deciding issue No.4, which does not survive.
While holding that issue No.1. "Whether plaintiff proves that he is the absolute owner of Sy. No.8/3, 3 acres 6 guntas of land in item No. (ii) of 'A' Schedule Property? Does not survive for consideration", in respect of Issue No.4. "Whether the plaintiff is entitled for declaration." Holds it in the negative. Thus the impugned judgment suffers from such patent errors:
a) As seen from the reliefs asked in the suit, the declaration sought for, was in respect of land in Sy. No. 8/3, 3 acres 6 guntas item No. (ii) of Schedule 'A' and not of the land in Sy. No. 8/4. By way of compromise, the Plaintiff Appellant has been admitted to be the owner of the land in Sy.
No. 8/3 and there is a decree already passed in favour of the Plaintiff.
b) The only property left for decision on the question of possession and permanent injunction, is the land in Sy. No.8/4 and the residential house constructed on that land.
The lower court erred in not taking into consideration that the points in issue and decided in the Writ Petition No.37018/1982 and Writ Appeal, are not the question of possession. The only question was whether the Appellant was a rival tenant or he had acquired title by adverse possession. The court has held
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NC: 2023:KHC:28443 RFA No. 1464 of 2005 that if the Appellant is not a rival tenant, he has no right to challenge the order of the Land Tribunal. If his case was one of adverse possession, the forum is only a Civil Court. The question of possession was not in issue in the W.P. or in W.A. The lower court has failed to consider the Pahanies/RTC produced by the Appellant for the years 1970-71 to 1996-97, Ex.P.19 to P.23. They were valid till 2002 and when the Land Tribunal passed the order on 17.06.1976 granting occupancy right to the 4th Defendant. The 4th Defendant has not produced pahanies or any revenue record to show that he was cultivating the land in Sy. No. 8/4 either on 01.03.1974 or at any time earlier. Even the order of the Land Tribunal has not referred to any pahani or revenue records or to an enquiry being held as required under the Act, for the Court to rely on such an order. As held by this Hon'ble Court, as it was not a speaking order it amounts to no adjudication at all. Such an order is a void order.
The lower court has erred in relying on the order dated 4.12.2002 passed by the deputy commissioner Ex.D.18, canceling the pahanies for the years 1970-1971 to 1996-1997 after 31 years, without an application for condonation of delay in filing the appeal or revision and without having any other record to show that those pahanies are ungenuine. The lower court agreed in not considering the mahajar Ex.P.31 dated 16.9.2003 drawn after this order which clearly proved that the appellant is in actual possession of the land in Sy.No.8/4. The endorsement dated 4.12.2003
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NC: 2023:KHC:28443 RFA No. 1464 of 2005 Ex.p.32 confirms the fact that there was standing crop raised by the Appellant, whereas the 4th Defendant's case is that he did not cultivate the land and it is lying fallow.
The lower court has relied mainly on the evidence that the Appellant has not filed Form No.7 to claim Occupancy right under the Land Reforms Act. The case of the Appellant is that he had asserted his right as owner and had stopped paying rent to the landlord for about nearly twenty years before the Land Reforms Act came into force. It is only for tenants to be registered as occupants of land under Sect. 45, a tenant has to file Form No. 7 and not for a person who asserts his own title to that land. The Land Tribunal can decide only the tenant's right and not his title to the land.
Section 55 of the K.L.R. Act provides for issue of Certificate of Registration. The section only says:
"The certificate shall be conclusive evidence of such registration." It does not say about his possession. Similar is the case that if a person in occupation of the land in his own right fails to apply in Form No. 7 to register him as occupant, he will not lose his possession.
The lower Court has erred in not considering the distinction between a person managing to get occupancy right without being in possession of the land, and a person who is in possession of the land actually cultivating the land asserting his own right. and not filing Form No. 7 for getting registered as occupant. The provisions of law are very clear and the law is also settled by the High Court.
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NC: 2023:KHC:28443 RFA No. 1464 of 2005 The lower court erred in holding that the tenancy of the Appellant ceased due to the commencement of the Land Reforms Act. The Land Reforms Act applied only to the tenanted land as on 01.03.1974. The Appellant's case is that he stopped paying rent from about the year 1952 and asserted himself as owner. The lower court erred in holding that the provisions of Section 44 (1) and 2(a) (e) of the Act applied to the case of the Appellant.
The lower Court erred in ignoring the scope of the suit. It is for permanent injunction and not for declaration so far as the land in Sy. No. 8/4 is concerned. It is an error to hold that the plea of adverse possession generated during disposal of the writ petition. A title by adverse possession accrues by lapse of time, even when a suit is pending and even after a decree had been made for possession and not executed.
The lower court erred in holding that the documents Ex. P.19 to 23, pahanies for the period 1970- 71 to 1996-97 pertain to a period prior to the suit and are disputed. Such a finding is erroneous as the Defendant No.4 has not produced any document to prove his possession or to disprove the documents Ex. P.19 to P.23. The insertion of name subsequent to the order dated 04.12.2002 passed by the Deputy Commissioner has been shown to be erroneous by the mahazar and endorsement issued by the Tahsildar Ex.P.31 and 32. That order is based on the judgment passed by the court below on 11.07.2002, which was set aside in R.F.A.No.1091/2002, as seen from the order itself. In view of the judgment passed later, the order
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NC: 2023:KHC:28443 RFA No. 1464 of 2005 passed by the Deputy Commissioner on 04.12.2002, is of no relevance.
The lower court erred in holding that "as on the date of filing the suit there is no documentary evidence on behalf of the plaintiff to show he is in possession:
a) Apart from the pahanies produced for a period of 27 years from 1970-71 to 1996-97 the report of the Commissioner appointed by the Court on the date the suit was filed, the proceedings before the Urban Land Ceiling Authority Ex. P.15, P.16, P.18. Ex.P.26 and the order passed by the Deputy Commissioner ULC, P.27 the mahajar drawn on 16.04.1982 Ex.P.29 and Ex.P.31 and 32 and the photographs showing the standing crop Ex.P.35, 36 and 37 make it crystal clear that the Appellant is in possession of the land in Sy.No.8/4 both for several decades prior to the date of suit and even to this date.
b) The Court below has failed to take into consideration that the Defendant No.4, except the order he managed to get from the Land Tribunal, has not produced a single revenue record or a single photograph to show that he had ever entered the land in S. No. 8/4. The Court below has erred in ignoring the provisions of law, as to the evidentiary value of photographs. This is a document as defined in section 3 of the Evidence Act, it is secondary evidence under Section 63 and it is very relevant. The crops grown every year and the standing crop now, confirm the fact that the Appellant is in possession of the land in Sy. No. 8/4 in his own right.
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c) The lower Court erred in holding that the documents subsequent to filing of the suit cannot be relied upon and in holding that the proceedings pertaining to ULC and the order passed therein, are subsequent to filing of the suit and have no relevance to prove possession. This is totally erroneous. These documents confirm and corroborate the evidence that the Appellant is in continuous possession of the suit property.
d) The lower court erred in holding that: "Thus if at all he is in possession, it can never be regarded as a lawful possession." The lower court while referring to provisions of Section 44 of the KLR. Act, has Incorrectly held:
"This would go to show that if at all the plaintiff has built a house, the same vested in the State Government with effect from 01.03.1974 and he lost all the rights."
This is an erroneous approach to the facts of the case. If a tenant for some reason, fails to apply for registering him as occupant, there is no question of vesting that land in the State Government. As seen from the documents filed by the 4" Defendant / 2nd Respondent, there is no document to show that he was a tenant or in occupation of the suit land on 01.03.1974 or prior to that date. The R.T.C. extracts and pahanies. Ex. P.19 to P.23 stands in the name of the Appellant in Column No. 12. The question of vesting suit property in the State does not arise.
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NC: 2023:KHC:28443 RFA No. 1464 of 2005 e. The order passed by the Deputy Commissioner is on its face erroneous, whereas the Tahsildar has found as a fact that there is standing crop and the Appellant has cultivated the land and he is in possession.
The lower Court erred in holding that the mahazars drawn after filing of the suit, the photographs of the residential house, standing crop. construction of the compound wall of about 1,200 feet long 6 feet height, construction of a shed in a portion of the said property etc. are subsequent to the suit and cannot be considered. The lower court has failed to consider that the Deputy Commissioner's order was not for ejectment of the Appellant from the suit property or for recovery of possession. The Tahsildar has found on inspection, that the filing of the D.C. was not factually correct.
The lower Court has failed to consider that the Appellant is an illiterate agricultural labourer, who was also worked as a coolie and as a watchman. His answer for the question asked in English, that he has trespassed for constructing the shed, has been taken out of context and had been used to ignore abundant documentary evidence. The same reasoning ought to have been applied for the admission by Defendant No.4 that he was not allowed to cultivate the land.
The way the documents filed by the Appellant have been considered, makes one thing certain that the finding of the Court below is not according to settled principles of law. The lower court is repeating the same erroneous approach of the case, on the point of adverse possession for which there is no plea nor a relief
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NC: 2023:KHC:28443 RFA No. 1464 of 2005 asked and holding that, "the suit is not maintainable in the absence of any material with regard to the perfecting the plea of adverse possession."
The erroneous findings given by the lower Court prove that the Court has not applied its mind to the facts of the case, scope of the suit and has failed to consider the settled principles.
The lower court has erred in not taking into consideration that : irrespective of the fact that the Appellant did not make an application under Section 48- A of the Karnataka Land Reforms Act, or that the 4th Defendant / Second Respondent made an application before the Land Tribunal and there was an order dated 17.06.1976 in his favour, these facts remain undisputed that:
a) The Appellant was in actual possession of the entire land bearing No.8/4 for several decades along with the lands in Sy. Nos. 8/2 and 8/3 and the residential house bearing No. 198, before 01.03.1974, and continues to be so even to this day. Neither the 1st Respondent not any of her LR's nor the 2nd Respondent, was ever in possession of any portion of the suit property or the house in question.
The deciding factor is: who is in possession of the land in Sy. No. 8/4 and the residential house in question. The lower Court erred in not taking into consideration that: except showing an order that the 2nd Respondent had managed to obtain, which was passed without referring to the R.R and pahanies, he was not in possession of the land or house in question at any point
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NC: 2023:KHC:28443 RFA No. 1464 of 2005 of time. The lower Court erred in not referring to : Exs. P.19 to 23 and also to the Court Commissioner's Report dated 08.07.1982, which is part of the Court records, reports given under the Urban Land Ceiling Act. Ex. P.25 to Ex.P.28, which prove beyond doubt that the Appellant is in continuous and undisturbed possession of the suit land which he is now cultivating and the house in which he is residing with his family even on this date.
The lower Court erred in rejecting the application filed by the Appellant under Order 26 Rule 9 of the C.P.C. to appoint a Court Commissioner to make spot inspection to find out who is in possession of the land and the house. A similar application is filed before this Hon'ble Court.
The Appellant is filing an application under Order 41 Rule 27 seeking leave of the Hon'ble Court to produce additional evidence. The documents which are relevant to the case are: the certified copies of the ULC proceedings and the order passed by the Special D.C. of which the lower court is giving an adverse finding that those documents do not bear the seal, signature etc. They are notices and the provisional order etc., issued by the ULC. They have been marked without objection.
The lower court erred in holding that the suit is bad for non-joinder of the State Government as a party. No relief has been sought against the State Government and there is no necessity to implead it as a party.
The appreciation of evidence with reference to the documents produced by the Appellant and the Respondents, and as to the oral evidence adduced by
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NC: 2023:KHC:28443 RFA No. 1464 of 2005 them, is erroneous. The reasoning given by the lower Court as to not believing the evidence of the Plaintiff and his witnesses and believing the evidence of the Defendant and his witnesses is erroneous and not proper. The other reasons assigned by the Lower Court are unsustainable in law."
16. Re-iterating the grounds urged in the appeal memorandum, Miss. Parvathi, contended that the Trial Court has grossly erred in not appreciating the material evidence placed by the plaintiff on record and wrongly dismissed the suit of the plaintiff resulting in miscarriage of justice and sought for allowing the appeal.
17. Per contra, learned counsel for the respondent Sri Chandrashekar has furnished the list of dates and synopsis and sought for dismissal of appeal. Synopsis is culled out hereunder for ready reference:
"LIST OF DATES & SYNOPSIS SUBMITTED ON BEHALF OF RESPONDENT No.2(a) and 2(b)
1. The Property bearing Sy.No.8, measuring 12 acres, situated in Laggere Village, Yeshwanthpur Hobli, Bangalore North Taluk was originally owned by one Sri.Gopala Iyengar. Later the said property was sub- divided into Sy.Nos.8/1, 8/2, 8/3 and 8/4.
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2. 10.04.1952 After the death of Sri.Gopala Iyengar, his four daughters namely, Smt.Ranganayakamma, Smt.Padma, Smt.Anjuvalliamma and Smt.Alumelamma divided the aforesaid properties and Sy.No.8/1 was allotted to the share of Smt.Ranganayakamma (not party to the suit), Sy.No.8/2 was allotted to Smt.Padma (Defendant No.1) Sy.No.8/3 was allotted to Smt.Anjuavalliamma (Defendant No.2) and Sy.No.8/4 allotted to share of Smt.Alumelamma (Defendant No.3).
3. 17.06.1976 Defendant No.4/Respondent No.2, Sri.P.G.Sudarshan (son of Srl.Gopal Iyengar through 2nd wife) filed Form No.7 seeking conferment of occupancy rights in respect of land measuring 3 Acres 4 guntas in Sy.No.8/4 owned by his sister, Smt.Alumelamma, and the Land Tribunal vide its order dated 17.06.1976 in LRF 38/74-75 was pleased to grant Occupancy rights in favour of Defendant No.4. (Exhibit - D3).
4. 1982:
The Plaintiff/Appellant filed a suit, O.S.No.1527/1982 for permanent injunction in respect of Sy.No.8/4 and sought declaration in respect of Sy.No.8/2 and 8/3 against the daughters and son of Sri.Gopala Iyengar contending inter alia:
i. Plaintiff is in continuous and uninterrupted possession of Sy.No.8, measuring 9 acres 12 guntas since last 25
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NC: 2023:KHC:28443 RFA No. 1464 of 2005 years in the capacity of a lawful cultivator and tenant and built a residential house 10 years back in a portion of the aforesaid property.
ii. Plaintiff was a tenant under Sri.Gopala Iyengar who is the father of the Defendants. After his death the Plaintiff has been asserting himself as the owner which is within the knowledge of the Defendants hence he perfected his title by adverse possession.
iii. The RTC depict names of Defendant No.1 to 3 and Defendant No.4 is the brother from the 2nd wife of Sri.Gopala Iyengar hence no way connected to the land and he is trying to assert his right by trespassing since 30.04.1982.
5. 1985:
The 4th defendant/2nd respondent has filed his written statement denying all contentions of the plaintiff and contending inter alla:
i. Defendants 1, 2 and 4 are children of late Gopala Iyengar by his 1st wife and 3rd Defendant by his 2nd wife. Sy.No.8 has been sub divided into 4 portions by way of registered partition deed dated 10.04.1952.
ii. Smt. Alumelamma let out Sy.No.8/4 to Sri.P.G.Sudarshan (Defendant No.4). Defendant No.1 and 2 have been personally cultivating their lands, Sy.No.8/2 and 8/3. The house in Sy.No.8/4 has been
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NC: 2023:KHC:28443 RFA No. 1464 of 2005 constructed by Sri.P.G Sudarshan. The Plaintiff has not filed any Form No.7 before the Land Tribunal.
iii. The land Sy.No.8/4 even according to the plaintiff 3rd Defendant Smt.Alumelamma was the owner and was leased to 4th Defendant on her getting the said land in 1952 since she was married and residing in Chennai.
6. 02.07.1984:
The appellant challenged the order of granting occupancy rights in favour of Sri.P.G.Sudharshan by the Land Tribunal before this Hon'ble Court in W.P.No.37078/1982 on the ground that he has perfected his title by way of adverse possession and this Hon'ble Court by its order dated 02.07.1984 was pleased to dismiss the writ petition filed by the appellant. (Exhibit - D1 page 163 of PB)
7. 1986:
The suit in respect of Sy.Nos.8/2 and 8/3 came to decreed in terms of compromise entered into between plaintiff and Defendants No.1 and 2. In view of the same, the suit continued only in respect of Sy.No.8/4 for permanent injunction.
8. 30.05.1990:
Challenging the order passed in writ petition, a Writ Appeal No.1116/86 came to be filed by the Appellant/plaintiff which was also came to be dismissed on 30.05.1990. The Plaintiff in the course of the hearing of the Writ Appeal has given up his plea of adverse
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NC: 2023:KHC:28443 RFA No. 1464 of 2005 possession and contented that such a plea was taken by mistake and asserted that he was a tenant. (Exhibit - D2)
9. 27.08.1996 Appellant filed an amendment application in the aforesaid suit O.S.No.1527/1982 seeking addition of pleadings regarding he has perfected his title to the property bearing Sy.No.8/4 by adverse possession and the said amendment was allowed by the Trial Court.
10. 30.04.1999:
During the pendency of the above suit, the Appellant/Plaintiff filed an application in Form 7A before the Assistant Commissioner/Competent Authority for grant of occupancy rights in respect of land bearing Sy.No.8/4 measuring 3 acres 4 guntas by pleading that he has been the tenant for the last 45 years. On 10.03.2006 the Land Tribunal dismissed the application in Form 7A by the plaintiff.
NIL
11. Plaintiff examined 3 witnesses and got marked Ex.P1 to P 37. The 4th defendant/2nd respondent examined 3 witnesses and got marked D1 to 37 documents.
12. 04.12.2002:
The Special Deputy Commissioner Bangalore cancelled the unauthorised revenue entries showing the name of
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NC: 2023:KHC:28443 RFA No. 1464 of 2005 the Plaintiff in the RTC in respect of Sy.No.8/4 from the year 1970-71. (Exhibit D-18, page 186 of paper book)
13. 11.07.2002:
The suit was dismissed by the Trial Court at first instance. However, on filing of regular first appeal, R.F.A.No.1091/2002, the judgment and decree was set aside by this Hon'ble Court and the matter was remanded before the Trial Court for fresh disposal by giving opportunity to the appellant to cross examine the defendants.
14. 22.08.2005:
After considering both oral and documentary evidence and point of law, the Trial Court by its Judgment and Decree dated 22.08.2005 dismissed the suit of the Appellant/Plaintiff. The Trial Court considered the following aspects in its judgement Page 229 of paper book):
(i) The plaintiff - PW1 has admitted in his cross examination that he has no documents to show that he was giving rent or wara to Sri.Gopala Iyengar. (Para 13)
(ii) Ex.D1 and D2, which are the writ petition and writ appeal filed by the appellant challenging the order of grant of occupancy rights in favour of the respondent No.2/Defendant No.4 (Sri.P.G.Sudharshan) came to be dismissed and hence the respondent No.2 is the absolute owner in possession of the schedule property (Para 14 of judgment, 264 to 270 of paper book).
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NC: 2023:KHC:28443 RFA No. 1464 of 2005
(iii) Ex.D18 which is the order of the Deputy Commissioner dated 04.12.2002 cancelling the entries in the RTC in the name of the plaintiff has attained finality and the same has not been challenged by the appellant. (Para 19 of judgment page 257)
(iv) Most of the documents produced by the Plaintiff are dated subsequent to the filing of the suit and cannot be considered. (Para 22 & 23 of the judgement, page 280 to 287 of paper book)
(v) The plea of Adverse possession not taken up at the first instance either while filing the suit or in the High Court while challenging the order of the Tribunal and further in the writ appeal, the plaintiff had given up his contention of adverse possession and hence he cannot permitted to contend he has perfected his title by adverse possession. (Para 24 and 25 of judgement, page 287 to 291 of paper book)
(vi) Suit with regard to occupancy right in favour of Defendant No.4 is already concluded as per Exhibit - D3 (re-grant order conferring occupancy rights) hence the suit with regard to Sy.No.8/4 is not maintainable.
(vii) The Plaintiff has admitted that Smt.Alumelamma is the Owner of Sy.No.8/4 having acquired under partition deed of 1952, the said property was leased in favour of 4th Defendant who filed Form No.7 for occupancy rights. So even if the Plaintiff was in possession of the land the
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NC: 2023:KHC:28443 RFA No. 1464 of 2005 same is vested with the Government and then subsequently granted in favour of Defendant No.4 in reference to Section 44(1) and 2(a) and (e) of the Karnataka Land Reforms Act. (Para 16 of judgment page 261 to 263 of paper book)
(viii) The adverse possession plea is an afterthought which was added by way of amendment to plaint on 28.08.1996 after 14 years from the date of suit and 6 years from the date of dismissal of the writ appeal. (Para 24 of judgment, page 288 of paper book)
(ix) There is no proof to show from what date the animus possession was taken by the plaintiff which is against the dictum of the Supreme Court of India in catena of judgments. On the date of filing of suit there was no documentary evidence on animus possession. (Para 28 of judgment, page 295 and 296) The judgment and decree of the Hon'ble Trial Court is a well- considered judgment having considered both oral and documentary evidence and position of law and the same is unexceptionable. Hence, the same does not call for any interference by this Hon'ble Court and consequently the appeal is liable to be dismissed."
18. Based on the above synopsis, Sri Chandrashekar, learned counsel contended that the plaintiff utterly failed to place on record before the Trial Court as to the alleged lawful
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NC: 2023:KHC:28443 RFA No. 1464 of 2005 possession of the suit property and therefore, the learned Trial Judge has rightly dismissed the suit of the plaintiff and sought for dismissal of the appeal.
19. In view of the rival contentions of the parties this Court has perused the material on record meticulously. On such perusal of the material on record, following points that would arise for consideration:
i) Whether the plaintiff has made out a case that the plaintiff was in lawful possession of the suit property as on the date of the suit and there was an illegal interference by the defendants?
ii) Whether the impugned judgment is suffering from legal infirmity, perversity and thus, calls for interference?
iii) What order?
20. In the case on hand, plaintiff got examined himself as P.W.1 and two witnesses on his behalf namely; Narayan and Ramaiah as P.Ws.2 and 3. In the oral evidence of the plaintiff, he has reiterated the plaint averments. After remand P.W.1 has filed an affidavit in lieu of his examination in chief, wherein he has reiterated the plaint averments. He has produced the
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NC: 2023:KHC:28443 RFA No. 1464 of 2005 documents which were exhibited as Exs.P.1 to P.35 as referred to supra.
21. It is pertinent to note that in his cross-examination, he admits that Sy.No.8/4 is an agricultural land even on the date of cross-examination. He has further answered that there is no site formed in Sy.No.8/4 and he has also stated that he is ignorant of the fact that the notice issued to the defendant No.4 by the Urban Land Ceiling Authorities.
22. He also admits in the cross-examination that the photographs which are produced at Ex.P.35 series are concocted documents. He has answered that police did not enquire at any point with regard to the complaint of the defendants and he has commenced the construction of the shed about two years earlier to 11.01.2005, measuring 75 feet X 30 feet. He also admits that he has not obtained any permission or licence for construction of the shed.
23. PW.2 and PW.3 namely; Narayan and Ramaiah have also deposed before the Court in line with the examination in chief of the plaintiff and they have specifically stated that the plaintiff is in possession of the suit property.
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NC: 2023:KHC:28443 RFA No. 1464 of 2005
24. In the cross-examination of P.W.2, he has answered that Gopal Iyengar expired prior to his birth and he might have twelve children in all. He has answered that his age is 35 to 36 years as on the date of cross-examination and he has seen the plaintiff who is in possession of the property since his child hood. He admitted that he has not seen any documentary evidence to show that the plaintiff who is possession of the suit property. He has further answered that plaintiff is cultivating the land even on the date of cross-examination.
25. In the cross-examination of P.W.3, he admits that he is the neighboring land owner and he is cultivating the land in Sy.No.152. He further answered that he cannot say the Sy.No., of land of Gopal Iyengar. He has further answered that 4th defendant has obstructed the possession of the plaintiff during the life time of his father.
26. Insofar as defendants' witnesses are concerned, specific suggestions are made that plaintiff is in possession of the property even on the date of cross-examination of these witnesses; which have been denied by them.
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NC: 2023:KHC:28443 RFA No. 1464 of 2005
27. These aspects of the matter are sought to be re-
appreciated by this Court as per the learned counsel for the appellant.
28. In the case on hand admittedly, the majority of the documents that are produced by the plaintiff are post suit documents.
29. Among the documentary evidence placed by appellant Ex.P.2 is an assessment register extract said to have been issued by Peenya panchayath in the year 1985-86.
Admittedly, the land in Laggere has lost its agricultural nature in the year 1985-86.
30. Suit is filed in the year 1982. There is no document filed by the plaintiff to establish that plaintiff was cultivating the land prior to filing of the suit.
31. Bajudars would also contend that they are also cultivating the neighbouring lands. Since the land in Laggere has lost its agricultural status, in the year 1985-86, the oral evidence of P.Ws.2 and 3 would not improve the case of the
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NC: 2023:KHC:28443 RFA No. 1464 of 2005 plaintiff and it could be safely termed as self serving testimony.
No documentary evidence is placed on record to establish as to by allegedly cultivating the land what crop has been grown on the suit property.
32. Further, in the absence of any documentary evidence, especially the record of rights extract and also failing to establish that the land Tribunal has granted the right in favour of the plaintiff herein, continuation of the plaintiff in the suit land as tenant by virtue of the order passed by the Land Tribunal, this Court is of the considered opinion that the possession, if any of the plaintiff is not a lawful possession.
33. Accordingly, the Trial Court was justified in dismissing the suit of the plaintiff.
34. No other point is urged before this court to form a contrary opinion, either such circumstances, this Court is of the considered opinion that the grounds urged in the appeal are hardly sufficient to annul the finding recorded by the Trial Judge which is sound and proper. Accordingly, point Nos.1 and 2 are answered in the Negative.
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NC: 2023:KHC:28443 RFA No. 1464 of 2005
35. Regarding Point No.3: In view of the finding of this Court on point NOs.1 and 2, following order is passed:
ORDER Appeal grounds are sans merit and is hereby dismissed.
No order as to costs.
Sd/-
JUDGE MR