Karnataka High Court
Ganapati Shankar Bhat vs Dr. Satish Mahabaleshwar Bhat on 11 March, 2022
Author: Ravi V.Hosmani
Bench: Ravi V.Hosmani
IN THE HIGH COURT OF KARNATAKA DHARWAD BENCH
DATED THIS THE 11 T H DAY OF MARCH, 2022
BEFORE
THE HON'BLE MR.JUSTICE RAVI V.HOSMANI
R.S.A. NO.5387/2013 (INJ.)
BETWEEN
1. GANAPATI SHANK AR BHAT
AGED ABOUT 58 YEARS,
R/O. NEELKOD, T Q:HONNAVAR
DIST: UTTAR KANNADA 581334
2. SHIVARAM SHANKAR BHAT
AGED ABOUT 56 YEARS, OCC: AGRICULTURE
R/O. NEELKOD, T Q:HONNAVAR
DIST: UTTAR KANNADA 581334
3. SRIPAD SHANKAR BHAT
AGED ABOUT 54 YEARS, OCC: AGRICULTURE
R/O. NEELKOD, T Q:HONNAVAR
DIST: UTTAR KANNADA 581334
4. SRIDHAR SHANKAR BHAT
AGED ABOUT 52 YEARS, OCC: AGRICULTURE
R/O. NEELKOD, T Q:HONNAVAR
DIST: UTTAR KANNADA 581334
5. KRISHNA SHANKAR BHAT
AGED ABOUT 48 YEARS, OCC: AGRICULTURE
R/O. NEELKOD, T Q:HONNAVAR
DIST: UTTAR KANNADA 581334
...APPELLANTS
(BY SRI.V.G.BHAT , ADV.)
AND
1. DR. SATISH MAHABALESHWAR BHAT
AGED ABOUT 60 YEARS,
2
OCC: MEDICAL PRACTIONER
R/O. HADINBAL, TQ:HONNAVAR
DIST: UTTAR KANNADA 581334
2. VENKATRAMAN MAHABALESHWAR HEGDE
SINCE DECEASED BY HIS LRS
2A. VISHNU VENKATRAMAN HEGDE
AGE: APPROX. 55 YEARS,
R/O. NEELKOD, T Q: HONNAVAR,
DIST: UTTARA KANNADA 581334
3. MAHABALESHWAR VENKATRAMAN HEGDE
AGE: 59 YEARS, OCC: AGRICULTURE
R/O. NEELKOD, T Q: HONNAVAR,
DIST: UTTARA KANNADA 581334
4. MAHADEVI KOM. VENKATRAMAN HEGDE
SINCE DECEASED BY HIS LRS R2A & R3
...RESPONDENTS
(BY SRI.SHIVARAJ S. BALLOLI, ADV. FOR R2A,
SRI.SHASHANK S. HEGDE, ADV. FOR R3,
R2(A) AND R3 ARE LRS. OF DECEASED R4,
R1 SERVED)
THIS RSA IS FILED UNDER SECTION 100 OF CPC AGAI NST
THE JUDGMENT AND DECREE DATED 02.04.2012 PASSED IN
R.A. NO.344/2001 ON THE FILE OF THE SENIOR CIVIL JUDGE,
HONAVAR, ALLOWING THE APPEAL, FILED AGAI NST THE
JUDGMENT DATED 06.12.2000 AND THE DECREE PASSED IN
O.S. NO.64/1988 ON THE FILE OF T HE ADDL. CIVIL JUDGE (JR.
DN.) HONAVAR, DECREEING THE SUIT FILED FOR INJUNCTION,
RESTRAINING THE DEFENDANTS FOR THE USE AND ENJOYMENT
OF THE PROPERTY.
THIS RSA COMING ON FOR ADMISSION THIS DAY, THE
COURT , DELIVERED THE FOLLOWING:
3
JUDGMENT
Challenging the judgment and decree dated 02.04.2012 passed by Senior Civil Judge, Honnavar in R.A. No.344/2001, this appeal is filed.
2. The appellants herein were plaintiffs in O.S. No.64/1988 while respondent No.1 was plaintiff No.6 and respondent Nos.2, 3 and 4 herein were defendants 1 to 3 respectively. Appellants herein were respondents in R.A. before the first appellate Court while respondents herein were appellants.
3. For the sake of convenience, parties hereinafter will be referred to as per their ranks before trial Court.
4. The plaintiffs filed O.S. No.64/1988 stating that plaintiff Nos.1 to 5 are brothers. Along with plaintiff No.6 they were owners of Sy. No.37 of Neelkod village. That defendant No.2 was son of defendant No.1 and defendant No.3 was wife of defendant No.1. It was stated that plaintiffs' grandfather Sri.Shivaram Gopal 4 Bhat and Sri.Ganapathi Krishna Hegde were owners of Sy. No.37 of Neelkod village. That father of defendant No.1 Mahabaleshwar Venkataramana Hegde was moolgenidar. At that time, government granted betta land privileges in Sy. No.82-b-10 measuring 3 acres 24 guntas for better cultivation of Sy. No.37. The said betta land is 'suit property' herein.
5. That Land Tribunal, Honnavar granted occupancy rights to plaintiffs in respect of several lands including Sy. No.37 of Neelkod village. Therefore, plaintiffs are in possession and enjoyment of suit properties. Upon interference by defendants with plaintiffs' privileges over betta land, plaintiffs filed suit.
6. On service of summons, defendant No.1 filed written statement denying plaint averments, but admitting that plaintiffs' ancestors were owners of Sy. No.37 and asserting that father of defendant No.1 was moolgenidar under plaintiffs' ancestors. He further stated that plaintiffs were not granted privileges over 5 suit land. They also specifically denied that plaintiffs were in possession. They further denied that fence put up by plaintiffs was removed by defendants. Defendants claimed to be in possession of suit land. Defendant No.1 specifically denied that Sy. No.37 was bagayat land and therefore, suit property could not have been assigned to said land. Hence, mutation entry recording same was invalid. Defendant Nos.2 and 3 adopted written statement filed by defendant No.1.
7. Based on pleadings, Trial Court framed following issues:
"1) Whether the plaintiffs prove that they are in lawful possession and enjoyment of the suit schedule property?
2) Whether plaintiffs further prove that the alleged interference by the defendants?"
Thereafter, plaintiff No.2 was examined as PW.1. The Tahasildar, Honnavar was examined as PW.2 and one Sri.Ganapathi Subraya Bhat was examined as PW.3. 6 Exhibits P1 to P16 were marked. On behalf of defendants, defendant No.1 examined himself as D.W.1 and marked Exhibits D1 to D11.
8. In his evidence, PW.1 reiterated plaint averments. In his cross-examination, it was elicited that he was not aware how and when the suit land was assigned as betta land to land belonging to them. During cross-examination, it is elicited that defendant No.1 got land bearing Sy. No.37 of Neelkod from children of Vaikuntha Prabhu. PW.1 admits that he is not aware of any government order assigning betta land to his land that there is no fence towards north and western side of his land that there is a path way to reach the suit land.
9. The Tahsildar, Honnavar is examined as PW.2. PW.2 produced Mutation Entry Register as Ex.P16. In his cross-examination, it is elicited that Ex.P16(a) namely half portion of Entry No.497 is torn and he is unable to say Entry No.497 pertains to which land. 7
10. PW.3 is adjacent land owner of plaintiffs. He deposed that suit land was assigned as betta land to plaintiffs' land and that they were using the same. During cross-examination, it is elicited that there is litigation between defendants and PW.3.
11. In support of their case, plaintiffs also marked Exs.P1 - record of rights of Sy. No.37, Ex.P2 is Mutation Entry No.497, Ex.P5 is order of Land Tribunal, Honnavar, granting occupancy rights to plaintiffs' ancestor, Ex.P7 is Form No.7, Ex.P16 is Mutation Entry Register of Neelkod Village and Ex.P16(a) Mutation Entry No.497 among other.
12. Defendant No.1 was examined as DW1. In his deposition, DW1 stated that grandfather of plaintiff namely Shivaram Gopal Bhat was owner of Sy. No.37. DW1's grandfather was of Shivaram Gopal Bhat in respect of Sy. No.37 from 1867. Since then land bearing Sy. No.37 was in possession and cultivation of family of defendant No.1. Thereafter, Shivaram Gopal Bhat had 8 sold said land to Vaikunta Krishna Prabhu. After death of Vaikunta Krishna Prabhu, his children Seetharam and Nagesh succeeded to the property. From them, defendant No.1 purchased land bearing Sy. No.37 under registered sale deed dated 25.04.1961. DW1 further stated that by virtue of said deed, defendant No.1, who was tenant of Sy. No.37 became its owner and continued in possession and enjoyment of property. DW1 denied suggestions that land bearing Sy. No.82-b- 10 was assigned as betta land to Sy. No.37. During cross-examination, it is elicited from DW1 that about 7 to 8 years ago, Sy. No.37 was converted as bagayath. Though DW1 denies suggestion that Sy. No.82-b-10 was assigned to plaintiff's land, he admits that Sy. No.82/B9 was assigned to his land bearing Sy. No.68/2/2A that same was entered in revenue records. In support of their evidence, defendants got marked copy of sale deed of year 1961 as Ex.D7.
13. On consideration, trial Court held that plaintiffs established their lawful possession over suit 9 property as entries in record of rights produced as Exs.P1 and P2 and Exs.P8 to P14 corroborated their claim. On examination of Ex.P16-mutation entry register, trial Court found that a portion of mutation entry from 497 was torn, remaining portion clearly mentioned assignment of Sy. No.82-b-10 as betta land to Sy. No.37/1 and 2. It also held that plaintiffs derived title as per grant of occupancy rights in respect of land bearing Sy. No.37, by Land Tribunal as per Ex.P5. It held that plaintiffs proved lawful possession referring to presumptions in favour of revenue entries as per Section 133 of Karnataka Land Revenue Act. Denial of plaintiffs' claim in respect of suit property was held to substantiate interference by defendants. Based on same it decreed suit. While reversing findings of trial Court, Appellate Court has merely stated as follows:
"28. In a suit for injunction, the plaintiff has to prove his case to the satisfaction of the Court. Therefore, I am of the opinion that the trial Court wrongly given much weight to the mutation entry, RTC entry and to the fact that the defendants admitted grant of Sy.No.82 10 Betta 9 to their malki land etc. In this case, the defendants have produced number of documents at Exs.D.1 to D.11. Though the trial Court discussed all these documents, it is wrongly held that the cumulative effect of all Ex.D.1 to D.11 favours the case of the plaintiffs and their case is more probable than the defendants, without considering these documents. As the sale deed produced by the defendants at Ex.D.1 and the mutation entry produced by the learned counsel for appellant at M.E.No.1306 on 29.9.2011 to show that the defendants' father purchased Sy.No.37 from Seetaram and Nagesh Prabhu on 15.12.1961 and the above said mutation entry was effected to that effect. Hence, the same can be considered. Therefore, as rightly argued by the learned counsel for appellants, there is nothing on record to show that at the time of granting the suit land, whether the plaintiffs' malki land was bagayat land.
29. Therefore, taking into consideration the evidence on record, I am of the opinion that the trial Court has erred in decreeing the suit of the plaintiffs and the trial Court has not taken into consideration that there is no mutation entry for grant of Betta land.11
Whether the plaintiffs are owners of Sy.No.37 or not is immaterial in this case. The trial Court failed to consider that whether the plaintiffs are able to prove their right over the Betta land bearing Sy.No.82 B/10, when the mutation entry to that effect is torn out and there is no any such entry. Admittedly the Betta lands are Government lands and are to be allotted for the better cultivation of gardeners. But as discussed by me herein above, there are no documents on record to show that whether the malki lands of the plaintiffs are garden lands or not. Hence, the defendants have clearly proved that the impugned judgment of the trial Court is not based on proper appreciation of the evidence available on record and the principles of law applicable to the case on hand. The defendants have made out sufficient ground to interfere with the impugned judgment and decree by this Court in this appeal. Therefore, the impugned judgment and decree calls for interference at the hands of this Court in this appeal. The grounds urged by the defendants in this appeal merit consideration, law and on facts of the case. Hence, the impugned judgment and decree of the trial Court is not sustainable and same is liable to be reversed.12
With regard to I.A. No.V is concerned, this suit is filed by the plaintiffs for mere injunction. Admittedly, the rights of the parties in the suit property is not decided in this matter. In the circumstances, I am of the opinion that the Will sought to be produced by the appellant No.1(a) under I.A. No.V is not helpful for the just decision of the suit. Hence, I.A. No.V filed by the appellant No.1(a) is liable to be rejected. Accordingly, I answer the points No.1 and 3 under consideration in the affirmative and issue No.2 in the negative."
14. Sri.V.G.Bhat, learned counsel for appellants submitted that plaintiffs had filed suit for permanent injunction against defendants from interfering with their peaceful and occupation of suit land. Suit claim was based on fact that suit land was assigned to land belonging to plaintiffs for its better cultivation. In order to establish assignment, plaintiffs not only produced record of rights indicating such assignment, but also established it by calling upon jurisdictional Tahasildar to produce mutation entry register maintained. Relevant revenue entry namely M.E. No.497 though was partially 13 torn, contents of remaining portion duly corroborated plaintiffs' version. Appreciating same, trial Court had rightly decreed suit. However, first Appellate Court on a cursory consideration without proper analysis of evidence reversed findings. Main reason assigned for reversing judgment of trial Court is stated that impugned judgment of trial Court was not based on proper appreciation of evidence available on record and principles of law applicable thereto. Same being contrary to law called for interference.
15. It was submitted that first Appellate Court exceeded its jurisdiction in interfering with finding of trial Court. It was further submitted that order of Land Tribunal granting occupancy rights in favour of plaintiffs' father in respect of Sy. No.37 was neither set aside nor challenged by defendants.
16. In the light of above submissions, learned counsel proposed following substantial questions of law for consideration in this appeal.
14
"a) Whether the I Appellate Court is correct in interfering in the judgment and decree passed by the Trial Court?
b) Whether the I Appellate Court is correct in holding that since the original mutation register is torn, the mutation entry is not proved even though the said entry is carried out and mutated in record of rights relating to suit property?"
17. On the other hand, Sri Shivaraj S. Balloli, learned counsel for respondent No.2(a) and Sri.Shashank S. Hegde, learned counsel for respondent No.3 sought to support impugned judgment and decree. It was firstly submitted that only evidence led to substantiate plaintiffs' claim was production of Mutation Entry No.497 as Ex.P16(a). Though there was attempt to establish same by examining jurisdictional Tahasildar as PW2, he stated that based on available record, he was not in a position to state survey numbers of lands to which it pertained. As custodian of mutation register was unable to state above, appellate Court had rightly interfered with conclusions and dismissed suit. 15
18. Learned counsel further submitted that plaintiffs utterly failed to establish any basis for effecting M.E. No.497. Both PW1 and PW2 admitted that they were not aware about basis on which Ex.P16(a) was effected. Such being the case, trial Court ought not to have decreed suit and appellate Court rightly interfered with same.
19. Learned counsel further submitted that even if it be assumed for sake of argument that, plaintiff was having some rights over suit property, nature and intent of prayer sought were for exercise of ownership rights. Noticing same, appellate Court had allowed appeal and set aside judgment and decree.
20. On above grounds, learned counsel sought for dismissal of appeal.
21. Though appellate Court has taken note of evidence on record, it appears to have been misled itself assuming that mutation entry No.497 is torn out from register completely. Appellate Court took note of 16 mutation entries produced by defendants showing manner of acquisition of ownership rights by defendant No.1 and mutations effected in pursuance of sale deeds. However, fact that plaintiffs' father was granted occupancy rights in respect of Sy. No.37 as per Ex.P5 has not been taken note of. The fact that remaining portion of Ex.P16(a) - mutation entry 497, clearly mentioned suit land was assigned as betta land to land bearing Sy. No.37 Hissa 1 and 2 has not been considered and noted in proper perspective.
22. The first appellate Court also ignored corresponding entries in record of rights about assignment of betta rights over suit schedule property. Though respondents disputed them on the ground that there was no basis for such entry, these entries have remained unchallenged till date. As long as entries remain on record, they would attract presumption and it would not be available for respondents-defendants to question same without establishing that entries were either illegal or fraudulent.
17
23. It is settled law that mere possibility by appellate Court for taking a different view than trial Court would not justify in reversing findings of trial Court. In Prabhakara v. Basavaraj K., reported in (2022) 1 SCC 115, Hon'ble Supreme Court has held as follows:
"22. The first appellate court while exercising power under Section 96 can re-do the exercise of the trial court. However, such a power is expected to be exercised with caution. The reason being, the trial court alone has the pleasure of seeing the demeanour of the witness. Therefore, it has got its own advantage in assessing the statement of the witnesses which may not be available to the appellate court. In exercising such a power, the appellate court has to keep in mind the views of the trial court. If it finds that the trial court is wrong, its decision should be on the reasoning given. A mere substitution of views, without discussing the findings of the trial court, by the appellate court is not permissible. If two views are possible, it would only be appropriate to go with the view expressed by the trial court. While adopting 18 reasoning in support of its findings, the appellate court is not expected to go on moral grounds alone."
24. In the case of Smt.Vimala Devi V/s Jang Bahadur, reported in AIR 1977 Rajasthan 196, it is held as follows:
"11. In the light of the above observations, I have now to see whether it was open to the learned District Judge to interfere with the order of the learned trial Court it is well settled that the grant of temporary injunction is a discretionary order and the decision of the first Court could not be easily interfered with by the appellate Court vide Musa v. Badri Prasad (1). The mere possibility of the appellate Court coming to a different conclusion on the same facts and evidence will also not justify interference vide Wazir Sunder Singh v. Musammat Farida Khanam (2). Another well established principle while disposing of the application under Order 39 Rules 1 and 2 C.P.C. is that when the Court while dealing with the case for grant of temporary injunction decides the question of prima facie case, it should apply its judicial 19 mind to the materials which are placed on the record and if it does not do so then it commits illegality in the exercise of jurisdiction and in that case the High Court is competent to interfere in revision in such a case vide Musa v. Badri Prasad (supra). The view taken in Musa v. Badri Prasad (supra) has been followed by Kan Singh, J. in Girdhari Lal v. Mahadevi Sharma (3). It has been held in this case that the appellate Court should be slow in upsetting a decision of a trial Court in a matter relating to grant of temporary injunction unless the decision of the trial Court is arbitrary, perverse or is not based on sound legal principles. It has been further observed in that case that when the appellate Court does not apply its judicial mind on all the materials brought on the record then in that case the approach of an appellate Court would be wrong and contrary to the well established principles laid down by the High Court, more so when the appellate Court does not deal with the reasoning that has prevailed with the trial Court and further when it does not apply its judicial mind on the materials placed on the record."
Emphasis supplied 20
25. In the case on hand, appellate Court has arrived at a different conclusion than trial Court without re-appreciation of entire evidence on record. Contrary to presumption in law available to entries in revenue records under Section 133 of Land Revenue Act, and in the absence of evidence led by defendants to overturn the presumption, the appellate Court has held that trial Court relied mainly on mutation entries. Its conclusions indicate an attempt to go beyond the mutation entries, without evidence and therefore without any justification. Especially so when defendants have not questioned validity of the mutation entries. Even its observation that the fact whether plaintiff was owner of land bearing Sy.No.37 would be irrelevant without plaintiffs establishing that the said land was bagayat land. The power to re-appreciate evidence would not justify reversal of findings without recording finding that conclusions were either capricious or perverse. Therefore, impugned judgment and decree passed by first appellate Court would be unsustainable. Substantial 21 questions of law framed for consideration are answered in favour of appellants. Hence, I pass following:
ORDER Appeal is allowed. The impugned judgment and decree dated 02.04.2012 passed in R.A.No.344/2001 by Senior Civil Judge, Honnavar is set aside. The judgment and decree dated 06.12.2000 passed by Addl. Civil Judge (Jr.Dn.), Honnavar is restored.
Sd/-
JUDGE Rsh / CLK