Karnataka High Court
Sri M Srinivasa Reddy vs The State Of Karnataka on 6 January, 2023
Author: V. Srishananda
Bench: V. Srishananda
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IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 6TH DAY OF JANUARY, 2023
BEFORE
THE HON'BLE MR. JUSTICE V. SRISHANANDA
R.F.A.NO.591/2004 (DEC)
C/W
R.F.A.NO.593/2004 (DEC)
IN R.F.A.NO.591/2004
BETWEEN
SRI M SRINIVASA REDDY
S/O LATE D MUNISWAMY REDDY
AGED ABOURT 60 YEARS,
R/O HOODI VILLAGE,
MAHADEVAPURAPOST,
BANGALORE-560 048,
REP. BY GPA HOLDER
T.N.NANJUNDAPPA
S/O THAMMAIAH GOWDA,
AGED ABOUT 60 YEARS,
NO.53, SARASWATHINAGARA
NAGARABHAVI MAIN ROAD,
VIJAYANAGARA EXTENSION,
BANGALORE-560 040.
...APPELLANT
(BY SRI SHIVA RUDRA, ADVOCATE)
AND
1. THE STATE OF KARNATAKA
BY ITS SECRETARY,
TO GOVERNMENT DEPARTMENT OF
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COMMERCE AND INDUSTRY,
M.S.BUILDING
BANGALORE- 01
2. KARNATAKA STATE INDUSTRIAL AREA
DEV. BOARD,
NO.14/3, II FLOOR,
RASTROTHANA PARISHAT BUILDING
BANGALORE
BY ITS EXECUTIVE MEMBER
...RESPONDENTS
(BY SRI R.SUBRAMANYA, ADDL. ADVOCATE GENERAL
ALONG WITH SRI SHIVANANDA D.S., AGA FOR R1;
SRI P.V.CHANDRASHEKAR, ADVOCATE FOR R2)
THIS RFA IS FILED U/S 96 OF CPC AGAINST THE
JUDGMENT AND DECREE DT. 27.11.03 PASSED IN
O.S.NO.4930/96 ON THE FILE OF THE XXVII ADDL. CITY
CIVIL JUDGE, BANGALORE, (CCH-9), DISMISSING THE
SUIT FOR DECLARATION & PERMANENT INJUNCTION.
******
IN R.F.A.NO.593/2004
BETWEEN
SRI H K SUBBARAJU
S/O.LATE KRISHNAMARAJU
AGED ABOUT 43 YEARS,
978, HOODI VILLAGE
MAHADEVAPURA POST,
K.R.PURAM HOBLI, BANGALORE-48
REP.BY T N NANJUNDAPPA
AGED 60 YEARS,
NO.63, SARASWATHINAGAR
NAGARBHAVI MAIN ROAD,
VIJAYANAGARA EXT.,
BANGALORE -560 040
...APPELLANT
(BY SRI SHIVA RUDRA, ADVOCATE)
3
AND
1. THE STATE OF KARNATAKA
BY ITS SECRETARY TO GOVT.
DEPT.OF COMMERCE AND INDUSTRIES
M.S.BLDG.,
BANGALORE-1
2. KARNATAKA STATE INDUSTRIAL AREA
DEVELOPMENT BOARD,
NO.14/3, II FLOOR,
RASTROTHANA PARISHATH BDLG.,
BANGALORE,
BY ITS EXECUTIVE MEMBER
...RESPONDENTS
(BY SRI R.SUBRAMANYA, ADDL. ADVOCATE GENERAL
ALONGWITH SRI SHIVANANDA D.S, AGA FOR R1;
BY SRI P V CHANDRASHEKAR, ADVOCATE FOR R2)
THIS RFA IS FILED UNDER SECTION 96 CPC
AGAINST THE JUDGMENT AND DECREE
DATED:27.11.2003, PASSED IN O.S.NO.4932/1996, ON
THE FILE OF THE XXVII ADDL. CITY CIVIL JUDGE,
BANGALORE, (CCH.NO.9), DISMISSING THE SUIT FOR
DECLARATION AND PERMANENT INJUNCTION.
******
THESE APPEALS HAVING BEEN HEARD AND
RESERVED FOR JUDGMENT ON 28.10.2022, COMING ON
FOR 'PRONOUNCEMENT OF JUDGMENT' THIS DAY, THE
COURT DELIVERED THE FOLLOWING:-
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JUDGMENT
1. The appeals are directed against the common judgment and decree dated 27.11.2003 passed in OS Nos.4930 and 4932 of 1996, by the XXVII Additional City Civil Judge, Bengaluru, whereby the suit of the plaintiffs came to be dismissed.
2. The parties are referred to as plaintiffs and defendants per their original rankings before the Trial Court.
3. The case of the plaintiffs in brief are as under:
By a grant order dated 29.6.1957, the landed property measuring 2 acres assessed at Rs.3 bearing Survey No.144 of Hoodi village Krishnaraja Pura Hobli, Bengaluru South Taluk having boundaries on: East by Pattandur Agrahara boundary; West by Survey Nos.214, 213, 212 and 211; North by Portion of Survey No.144 owned by H.K. Subbaraju S/o. late Krishnamaraju and South by Survey No. 145 [hereinafter referred to as "suit property" for short] was granted in favour of the plaintiff 5 being for upset price. Katha of the lands were mutated in the names of the plaintiffs and the same is reflected in the revenue records. Plaintiffs enjoyed the property by cultivating the said land and grown dry crops. They also paid required land revenue in respect of the granted land and lands were also phoded over a period of time. Survey Nos.211 to 215 were assigned after the lands were phoded.
4. By passage of time, abutting the lands of the plaintiffs in Sadaramangala village, Industrial layout was formed by the second defendant. Some time in the end of 1995-96, second defendant formed a layout encroaching a portion of the land belonging to the plaintiffs on the northern side. Plaintiffs did no take any action immediately. It is the further case of the plaintiffs that on 5.2.1991, the second defendant got the foundation stone laid from the hands of the then Chief Minister for construction of Industrial sheds.
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5. On the protest made by the plaintiffs, very next day, the foundation stone was removed from the encroached area. A joint written submission was submitted by the plaintiffs to the second defendant on 22.8.1996. In pursuance to the said representation, higher officials of the second defendant, requested the Tahsildar of the area to furnish the report. However, after some time, second defendant began to clear the Eucalyptus bushes situated on the suit land to form a road and layout. Again, the said action of the second defendant was protested by the plaintiffs and the said work was stopped by the second defendant. A specific contention was taken by the plaintiffs that the suit schedule property belonging to the plaintiffs are not acquired by the Government for the purpose of formation of Industrial layout and did not handover the same to the second defendant and as such, the suit was filed with the following prayer:
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"Prayer in O.S.Nos.4930 and 4931 of 1996 Therefore, the plaintiff prays that this Hon'ble Court may be pleased to pass judgement and decree in favour of the plaintiff and against the defendant.
a) declaring that the plaintiff is the owner of the suit schedule land.
b) restraining by permanent injunction, the defendants their employees, contractors and others claiming through them, from interfering with the peaceful possession and the enjoyment of the suit schedule property by the plaintiff.
c) award costs and grant such other relief as deemed just and necessary in the facts and circumstances of the case, including damages, as may be found caused by the defendants."
6. On receipt of the suit summons, the defendants entered appearance through their advocates. Second defendant filed a detailed written statement denying the entire plaint averments except accepting the averments made in para 3 of the plaint that there was a formation of road and laying of foundation stone for construction of Industrial sheds by the then Chief Minister. 8
7. Second defendant further contended that 84 acres and 34 guntas of land in different Survey numbers of Hoodi village including 6 acres 19 guntas in Survey No. 144 of Hoodi village was granted and transferred by the State Government to the second defendant by order bearing No.RD 252 LGB 91 dated 23.2.1994. The second defendant failed to pay at the rate of Rs.1 lakh per acre and in respect of the same, in all a sum of Rs.84,85,000/- was paid by the second defendant to the Tahsildar, Bengaluru South Taluk through a cheque bearing No.027888 dated 21.9.1994 drawn on Corporation Bank.
8. It is the case of the second defendant that after the aforesaid order came to be passed by the State Government, second defendant was formerly put into possession of the entire land on 19.6.1995 by Revenue Inspector K.R. Puram Hobli. Second defendant further contended that thereafter, it has formed the road and carved a layout in the entire area of 130 acres and 122 guntas of Hoodi village including the suit lands have been 9 declared as Industrial area by the Government and got it declared as Industrial area by the Government vide notifications acting under the powers under Section 1(3) of KIADB Act.
9. The second defendant also contended that plaintiffs have no right whatsoever in respect of the suit property and filed a false suit by concocting the documents in respect of suit property and sought for dismissal of the suit.
10. On 6.1.1997, a memo came to be filed by the first defendant, whereby, the first defendant would adopt the written statement filed by the second defendant.
11. In view of the contentions of the parties, the Trial Court raised following issues in the suit.
"1. Whether the plaintiff proves that he is the absolute owner of the suit schedule property?"
2. Whether the plaintiff proves that he has been in lawful possession of the suit schedule property?
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3. Whether the plaintiff proves interference?
4. Whether the 2nd defendant proves that the Government was the owner of the property in question and the same was granted to the 2nd defendant?
5. To what relief and order the parties are entitled for?"
12. By virtue of an order dated 23.7.1997, Original Suit Nos.4930/1996, 4931/1996, 4932/1996 were clubbed for common trial. In order to prove the case of the plaintiffs, Sri H.K.Subbaraju is examined as PW-1 in respect of all the three suits and has relied on 23 documents which were exhibited and marked as Exs.P1 to P26 comprising of Grant Certificates, Land Revenue paid receipts, Copy of Mutation, Record of rights, Nil Encumbrance certificates, copy of the reference, grant certificate, Tax paid receipts, Pahani of the land, Letter dated 26.9.1996, report dated 26.9.1996, sketch, order in case No.RRT(CR)6/1997-98 (Ex.P25).11
13. On behalf of the defendants Sri R.V. Prakash, Sri Lingegowda and Sri N. Hanumanthu are examined as DWs.1 to 3 and they also relied on 21 documents which were exhibited and marked as Exs.D1 to D21 comprising of Gazette notifications, certified copy of the order, copy of the sketchs, recommendation of the Spl. Deputy Commissioner dated 31.7.1997, letter addressed to the Tahasildar, possession handover letter, reiteration letter regarding possession, copy of akarband, letter dated 4.9.1997, letter dated 12.11.1998, letter dated 13.11.1998, letter dated 27.11.1998, letter dated 26.11.1998, uttar copy in respect of Survey No.144, Tippani copies, Register of Saguvali chits, document regarding the extent and Memorandum regarding darkast proceedings.
14. On conclusion of recording of the evidence, the learned Trial Judge heard the parties in detail in respect of all the suits and passed the common judgment on 27.11.2003 and dismissed all the three suits. 12
15. Being aggrieved by the same, plaintiffs in two suits have preferred these appeals. The grounds urged in the appeals are as under:
GROUNDS IN R.F.A.NO. 591/2004 The impugned judgement and decree passed by the court below barred and suffers in application of mind in linking the facts of the case and the law applicable for the case, hence, the same is not sustainable.
It is submitted that admittedly the suit schedule property belongs to the appellant as the same was granted to the appellant's father way back in the year 1957 by way of Grant and this fact has been admitted by the respondent also for having entered in the Revenue records the names of the appellant and his father in respect of the suit schedule property., and also have admitted the possession and enjoyment of the suit schedule property by the appellant, which is not considered and ignored by the court below. The records pertaining to the suit schedule land are in the custody of defendant No.1 as per Exhibit D.15 and fact is not at all appreciated by the court below, hence, the impugned judgement suffers in legality and liable to be set-aside.13
It is submitted that the pahanis which the appellant has produced clearly demonstrate the possession and enjoyment of the suit schedule property and further respondent's officials who have deposed before the court below have clearly admitted that the Mutation, Pahani have been issued from their office and the said documents have been accepted based on the grant certificate issued by the authority and the said entries have been entered from the year 1962 to till the date of filing the suit which they have not disputed at any point of time, hence, the court below without taking it into consideration the continuous possession and enjoyment of the suit schedule property based on the documents made in favour of the Appellant and his father vaguely and casually observing that there are entries in different hand writing and also difference in ink and suspecting the legality of the grant certificate has dismissed the suit without looking into the fact that in Govt. offices the officials will be changed from time to time and different officials will enter the record with different hand-writing and with different ink which fact has not been considered by the court below and have also ignored the admitted facts of the officials.
It is submitted that the name of the appellant's father and the name of the appellant have been 14 recorded in the Revenue Records way back in the year 1962-63 itself till the date of filing the suit and without prejudice the appellant has perfected his title over the suit schedule property by way of adverse possession since he is in continuous possession of suit schedule property for over 30 years this aspect is also ignored by the court below.
It is submitted that the 2nd respondent has taken a plea alleging that the suit schedule property has been taken by the 1st defendant/respondent during the year 1986 whereas the Pahanis which the appellant produced before the court below clearly demonstrates that there is continuous entries in the Pahani till the date of filing the suit, hence, the observation of the court below holding that the 2nd respondent is in possession of the suit schedule property is not correct on the other hand it is the appellant who is in possession of the suit schedule property as per the letter dated 26.9.96 which is marked as Ex.P.22 which was written by the Tahasildar of Bangalore South taluk to the 2nd respondent authority, hence, the finding given by the court below holding that the 2nd respondent is in possession of the suit schedule property is obviously incorrect and against to the documentary evidence on records. Hence, the impugned judgement is not a 15 speaking judgement and the same is liable to be set- aside.
It is submitted that the State of Karnataka have initiated proceedings before Special Deputy Commissioner, Bangalore Dist in R.R.T(C.R.No.6/1997-98 against this appellant and Krishnamraju and H.K.Subbaraju in the said Appeal, the Hon'ble Special D. C. in its order dated 5.11.1999 has observed that as per the report of the Tahasildar the Revenue records in respect of the property of the Appellant and the property of said Krishnamaraj and Subbaraju stands in their names since 1962-63 and as per the Sketch the appellant and Krishnamaraju and Subbalaju are in possession and also admitted the fact that having issued mutation No.6, 7 and 8/62-63 out of which M.R.No.8 in respect of the appellant's father 's name is entered and also subsequently having entered I.H.C.3/1995-
96, and 4/95-96, hence the observation made in the order of the Special D C. clearly confirms the continuous possession and enjoyment of the suit schedule property by the appellant and on the other had the respondent authority have not taken any action or initiated any proceedings denying their title and further they have no authority to remove or delete the name of the appellant from the revenue records since their name has been entered for over 16 43 years and though this fact was brought to the notice of Court below as per Exhibit P.25 the same has been ignored by the court below. Hence, the judgement is liable to be set-aside.
Viewed from any angle, the findings of the court below is erroneous, frivolous, vexatious and not in accordance with the material documents and evidence on record and the same is liable to be set aide, by the hands of this Hon'ble Court. GROUNDS IN R.F.A.NO. 593/2004 The impugned judgement and decree passed by the court below is opposed to law, facts and probabilities of the case and against to material documents and evidence available on records.
It is submitted that admittedly the suit schedule property belongs to the Appellant since the same was granted to his father way-back in the year 1957 by way of grant and the Revenue Authorities have effected the mutation and other Revenue entries in the name of his father vide M.R.No.6/62-63 and after the death of his father the mutation has been affected in the name of the appellant vide I.H.C.No.4/95-96 and the pahanis are also standing in the name of the appellant's father and appellant, all these documents clearly shows the absolute owner ship of the appellant and the possession of the 17 suit schedule property. The court below has ignored all these admitted facts which have been admitted by the issuing authority and has drawn wrong inference holding that the Grant made in the name of father of the appellant is suspicious and not genuine one hence the observation made by the court below by ignoring all other admitted documents is contrary to law and probabilities of the case, hence, the same is liable to be set-aside. It is submitted that the court below casually observing that there are defects in entries of the Saguvali chit Register produced by the Respondent as per Ex. D.7, holding that the relevant entries in respect of the suit schedule property appears to be defective compared to other entries and hand-writing has wrongly came to the conclusion on the ground that the entries are in different ink and different hand writing. The entries made in Ex.D.19, refers to various grants made to various persons and on different dates and the entire scribe and the date of grant cannot be one and the same. Moreover, the Revenue authorities are the Custodians of Saguvali Chit Register and the entries made there in are entered by the concerned government officials and there is no ground or reason to suspect the entries made therein and appellant cannot be penalised on this ground, hence, the impugned order suffers from 18 serious error in application of mind and in dismissing the suit.
It is submitted that the witnesses who have deposed on behalf of the respondents have clearly admitted in their evidence and cross examination for having issued mutation, pahani in the name of the appellants and also their officials in their own letter addressed to the II respondent at Ex.P.22 have clearly admitted the fact that M.B.No.6/62-63 entered in the name of the appellant father and I.H.C.No.4/96-97 entered in the name of the appellant and the possession of the appellant in respect o the suit schedule property and this Vital aspect has not been appreciated and the same are ignored by the court below.
It is submitted that the case of the II respondent is that during 1986 they have taken the suit schedule property From the state government and since then they claim that they are in possession of the same, whereas the Pahanis produced by the appellant before the court below clearly shows that his name is appearing till the date of filing the suit, hence the presumption under law cannot be drawn against the appellant with regard to the possession and on the other hand the 2nd defendant is not in possession of the said property at any point of time, hence, the findings of the court below holding that the II 19 defendant is in possession of the schedule property is against to the materials on record and opposed to law and the same is liable to be set-aside. It is submitted that the entire revenue documents in respect of the suit schedule property are in the name of the Appellant and his late father for over 40 years and they are in possession and enjoyment of the same and without prejudice the appellant has perfected title towards the suit schedule property by way of adverse possession in view of his continuous possession and enjoyment for over 30 years and this aspect is also ignored by the court below. It is submitted that the Government of Karnataka at its instance sue-moto has initiated proceedings against the appellant and two others before the Spl.Deputy Commissioner in Case no.
RRT.C.R.No.6/97-98 in respect of suit land, in which the special D.C.in his order dated 05.11.99 has observed that as per the report of the concerned Tahasildar, Revenue records in respect of the suit schedule land are made in the name of the Appellant by accepting the Mutation and Pahanis and also admitting the possession of the appellant, on the other hand the respondent authority are the granting authority till the date they have not taken any action or initiated any proceedings against the appellant to remove or to delete his name from the Revenue 20 entries on the ground that they are illegal entries or denying the title of this appellant and further the granting authority have no authority to remove or delete the entries made in the name of the appellant in respect of suit property after lapse of 43 years and the court below has ignored and not looked into the Order of the Special D.C. which is marked at Ex.P.25 though it supports the case of the Appellant. Hence, the impugned judgement is not in accordance with law, facts, and law applicable to the case on hand. Viewed from any angle the findings of the court below is erroneous, frivalous, vexatious, and not in accordance with the admitted facts and material documents on record hence, the same is liable to be set-aside by the hands of this Hon'ble Court, and there by decreeing the suit in favour of the appellant."
16. Re-iterating the grounds urged in the Appeal Memorandum, Sri Shivarudra, learned counsel for the appellant vehemently contended that the material evidence on record specifically establish that the land was granted in favour of the plaintiffs by order dated 29.6.1957 in the year 1957. He further contended that thereafter, the plaintiffs were in possession of the suit property and 21 revenue entries were mutated in the names of the plaintiff and taxes were being paid and collected by the Government and the very documents filed by the defendant themselves would go to show that plaintiffs were granted lands which is the suit schedule property and therefore, without acquiring the same, they could not have handover the lands to the second defendant and thus sought for allowing of the appeal.
17. Per contra, learned counsel for the first defendant Sri R.Subramanya, Additional Advocate General along with Sri Shivananda D.S., Additional Government Advocate contended that the suit lands are the Government lands and the documents that has been relied on by the plaintiffs are all concocted documents and the same has been rightly appreciated by the learned Trial Judge by passing the impugned judgment and sought for dismissal of the appeal.
18. Submissions would also made on behalf of the defendants that the plaintiffs have concocted the land 22 grant order and the same does not find place in the revenue records and the original grant orders are not produced itself and therefore, sought for dismissal of the suit.
19. The second defendant adopting the arguments put forth on behalf of the first defendant, contended that the lands were acquired by the Government and then handed over to the second defendant and thereafter, the revenue inspector of the concerned area has put the second defendant in possession of the suit property and the suit property would also come under the purview of the order passed by the Government and thereafter, the second defendant formed a road in its industrial lay and therefore, the suits of the plaintiffs have been rightly rejected by the Trial Court and sought for dismissal of the appeal.
20. In view of the rival contentions of the parties, following points would arise for consideration: 23
(i) Whether the plaintiffs have made out a case that they are the absolute owners in possession of the suit property and there was an interference by the second defendant?
(ii) Whether the second defendant establishes that Government is the owner of suit property and the same was granted to second defendant in accordance with law?
(iii) What Order?
21. In order to prove the case of the appellants in all the suits, one of the plaintiffs by name Sri H.K. Subbaraju is examined as PW-1. He reiterated the contents of the affidavit which is filed in lieu of his examination in chief. He deposed that he is the owner of land in Survey No.144 of Hoodi village, to the extent of 2 acres, as the same was granted to his father by the Deputy Commissioner, Bengaluru. He marked grant certificate cum saguvali chit as Ex.P1. He further deposed that after the grant, his father was put in possession of the land and they have been paying land revenue to the Government and in that 24 regard, he produced land revenue paid receipts at Exs.P2 and P3. He also deposed that after the land was granted, his father applied for transfer of entries and the name of his father was entered in the record of rights as per MR No.6/1962-63 as per Ex.P4. However, half portion of Ex.P4 is torn out. He produced the certified copy of the record of rights as per Exs.P5 and P6. He also produced Encumbrance certificates issued by the Sub-Registrar as per Exs.P7 and P8. He further deposed that after the death of his father, he applied for change of revenue entries in his name and he got the same transferred in his name as per Ex.P9 in MR No.4/95-96.
22. He further deposed that himself and plaintiffs in OS Nos. 4931/96 and 4930/1996 have given a petition to the defendants stating that they are in lawful possession of the suit properties when the second defendant tried to form a road in the suit property. He further deposed that they were assured 25 by the revenue authorities that the matter would be referred to the higher officers and a reference was made available to them as per Ex.P-10. Thereafter, the Revenue Inspector visited the spot and recorded the statement of himself and other plaintiffs and drew a mahazar. He further deposed that despite such representation second defendant continued to interfere with the suit property. Therefore, there was a resistance. Despite the same, 5 to 6 guntas of land have been illegally occupied by the defendants to form a road. However, no road is formed in the land of Srinivasreddy who is plaintiff is OS No.4930/1996. About 25-26 guntas of land have been illegally occupied by the defendants in the land belonging to Krishnaraju who is the plaintiff in OS N.4931/96.
23. He further deposed that Survey No.144 of Hoodi village originally measured 32 acres 2 guntas. After grant of the land, Survey No. 144 is renumbered as 215. He has furnished the boundaries of the land 26 that was granted to his father and also the plaintiffs in the other cases. He marked Ex.P11 to establish that father of the plaintiff in OS No.4931/1996.
24. Ex.P12 is the land revenue paid receipt by Srinivasreddy. Ex.P13 is the Encumbrance certificate. Ex.P14 is the record of rights and Ex.P-15 is another Encumbrance certificate in respect of the land of Srinivasreddy.
25. He further deposed that land of Srinivasreddy was numbered as 144/3. He has also furnished the boundaries of the land of Srinivasreddy. Likewise, he has furnished the grant certificate, Encumbrance certificate, tax paid receipts and copy of the mutation in respect of plaintiff Krishnaraju in OS No.4931/96 which were marked as Exs.P16 to P21. He specifically deposed that Krishnaraju is in occupation of 3 acres 2 guntas. He further deposed that based on the representation given by him, Tahsildar, Bengaluru South Taluk, had addressed a 27 letter to the Special Deputy Commissioner of the second defendant and the same is marked at Ex.P22.
26. In the case on hand, case of the plaintiff is based on grant certificate issued in favour of the plaintiff/father of the plaintiff. They are marked at Exs.P1, P11 and P16 signed by the Tahasildar, Bengaluru South Taluk. The grant certificate are dated 29.5.1957 issued in favour of Sri Krishnam Raju, (father of plaintiff) Sri Muniswamyreddy father of plaintiff in OS No.4930/1996 and Sri Krishnam raju s/o. Gangaraju, who is the plaintiff in 4931/1996.
27. Ex.P4, P9 and P19 are the mutation register extracts relied on by the plaintiffs after the grant. It is pertinent to note that in Exs.P4 and P9 there is a recital that mutation is carried out based on the grant made by Deputy Commissioner in the year 1957.
28. Exs.P2, P3, P12, P17 and P18 are the tax paid receipts in respect of the lands covered under the 28 alleged grant. All these receipts are for the year 1994, 95 and 96. The Encumbrance certificate are marked at Ex.P7, P8 and P13, P15 and P21. RTC extracts in respect of the suit properties for the years 1992-93 to 1995-96 are marked at Exs.P5, P6, P14 and P20.
29. As against these set of plaintiff documents defendants have produced a document marked at Ex.D21. The said document is a memorandum of grant prepared in the year 1946 wherein the land in Survey No.144 of Hoodi village is granted/allotted to five different persons. However, Ex.D21 does not contain the grants which are covered under Ex.P1, P11 and P16 said to have been granted in the year 1957.
30. It is noticed that in Ex.P1, P11 and P16, there are no boundaries for the granted lands. However, in the boundaries column, it has been mentioned that as per the revenue sketch. It is an admitted fact that plaintiffs did not produce the 29 revenue sketch which is part of grant order. Therefore, the learned Trial Judge raised doubt as to genuineness of Ex.P1, P11 and P16 and disbelieved the case of the plaintiff and dismissed the suit.
31. To counter the said finding recorded by the learned Trial Judge, learned counsel Sri Shivarudra vehemently contended that State of Karnataka filed an application for cancellation of the revenue entries as per the provisions of land revenue Act, which was numbered as RRT (2) CR6/98-99. Learned counsel for the plaintiffs have also relied on the letter issued by the Tahsildar, Bengaluru South Taluk, as per the request of the Land Acquisition Officer, KIADB, Bengaluru and in the said letter, Tahasildar has mentioned remaining land in Survey No.144 is measuring 7 acres 2 guntas and out of which, Sri Muniswamyreddy S/o.Nanjareddy, is in possession of 2 acres of land, Krishnamraju S/o.Munir is in possession of 2 acres land, Krishnamraju S/o. 30 Gangaraju is in possession of 2 acres of land and they have been granted lands vide grant order No.M2 DAR 203/56-57 and mutation entries are effected as per MR No.6, 7 and 8 of 1962-63.
32. Letter of Tahasildar also mentions that in column Nos.9 and 12(2) names of the aforesaid persons are forthcoming. Based on the aforesaid documents, learned counsel for the appellant vehemently contended that admittedly, these documents have come into being at an undisputed point of time, and learned trial judge failed to note the probative value of the letter written by the Tahasildar at an undisputed point of time and therefore, the impugned judgment is bad in law. Learned Senior counsel representing the Government, however, contended that the said letter itself is a concocted. In order to ascertain the genuineness, this court directed the Government to produce the file bearing No.RRT(2) CR NO.6/1998-99 pertaining to land in Survey No.144 31 of Hoodi village. Accordingly, with a memo learned Additional Government Advocate furnished the original file. This court perused the original file meticulously. On such perusal, it is noticed that Tahasildar on 30.6.1988 has corresponded to Special Deputy Commissioner, Bengaluru South Taluk, Bengaluru, wherein, the Tahsildar has first time mentioned that the documents relied on by the plaintiffs are bogus documents. However, a sketch is found in the very same file wherein the plaintiffs/their predecessors have sought for survey of the land in the year 1997 wherein the surveyor had visited the land in Survey No.144 and made a spot inspection on 21.11.1997 and after enquiry furnished a sketch, wherein the land is in possession of the plaintiff is clearly seen. The survey sketch prepared by the Tahsildar also shows the other portions of the land in Survey No. 144. The RTC extract found in the very same file also mentions the names of the plaintiffs. Based on those documents, the Tahsildar has written a letter on 32 28/29.10.1997 to KIADB that plaintiffs are in occupation of the land as aforesaid in Survey No.144.
33. However, for the reasons best known to the defendants, these correspondence were not produced before the Trial Court. On the contrary, these documents were suppressed by the defendants so as to form a just opinion by the Trial Court with regard the dispute in question.
34. Surprisingly in Ex.D9, the land which is in possession of the plaintiff as per the survey sketch marked as Ex.P24, is shown as Gomal land. If it is a gomal land, how could the said gomal land be granted to KIADB is again a question that remains un- answered.
35. Ex.D9 sketch is thus a concocted document by the Government inasmuch as Ex.P24 and D9 are issued by the very same Tahsildar. In fact, the file which has been produced by the Addl. Government 33 Advocate, referred to supra in respect of the RRT proceedings, contains the survey sketch as per Ex.P24 and no sketch is available in the said file as per Ex.D9. These are all aspects which goes to the very root of the matter in deciding the dispute in question in accordance with law. In the impugned judgment, these aspects of the matters are missing.
36. First defendant is the State of Karnataka and the second defendant is the KIADB. Admittedly, the lands in Survey No.144 were acquired by the Government and handed over to the KIADB. KIADB further developed the land as Industrial layout and allotted the land to the different persons. KIADB cannot plead its case than what the Government can plead.
37. If the land of the plaintiffs is not acquired and suitable compensation is not paid to the plaintiff, the very acquisition is incorrect. Therefore, plaintiffs are justified in approaching the civil court seeking an 34 order of declaration that their lands are not acquired by the Government and interference by the second defendant into the lands of the plaintiff is thus justified.
38. The learned trial judge however, based on the material evidence on record proceeded to place reliance only on Ex.D1 and the oral evidence of the defendant when set of documents are made available before the Trial Court, wherein the names of the plaintiffs are available in the revenue records, the Trial Court ought not to have disbelieved the case of the plaintiffs and ought not to have dismissed the suit of the plaintiffs.
39. The approach of the Trial Court in not properly appreciating the documents of the plaintiff without seeking further clarification from the defendant as to how the names of the plaintiffs can be entered into revenue records and ignoring the revenue entries and dismissing the suit of the plaintiffs is thus 35 in the considered opinion of this court is a perverse approach. No discussion or whatsoever is made by the learned Trial Judge with regard Ex.P23, P24, P25 in the impugned judgment. Placing reliance only on Ex.D21 without there being any further enquiry as to the rights of the parties that too in a civil suit seeking an order of declaration is thus in the considered opinion of this court has resulted in miscarriage of justice.
40. Second defendant did not place any evidence on record that the lands of the plaintiffs are belonging to the Government and therefore, the same is acquired and handed over to them. Mere saying that entire land in Survey No. 144 of Hoodi village is acquired and handed over to the KIADB would not absolve the KIADB from discharging the burden on issue No.3 raised before the Trial Court.
41. Needless to emphasize that the file produced by the learned Additional Government 36 Advocate before this court referred to supra, contains the best evidence to through light as to the disputed question and same needs to be remitted to the Trial Court in a sealed cover to be relied on by the parties in the fresh trial in accordance with law.
42. Thus from the above discussion, invariably, the points are to be answered in Affirmative. Having said thus, since both the parties have not placed their evidence on record, especially the Government has withheld the best evidence from the purview of the Trial Court, this court is of the considered opinion that the impugned judgments needs to be set aside and matters are to be remitted to the Trial Court for fresh disposal in accordance with law.
43. Accordingly, points are answered and following order is passed:
ORDER
(i) Appeals are allowed.37
(ii) The impugned judgments are set aside.
Matters are remitted to the Trial Court for fresh disposal in accordance with law.
(iii) The Registrar (Judicial) is hereby directed to send the file bearing No.RRT(2) CR.6/98-99 which is produced along with the Memo dated 12.9.2022 in pursuance of the order passed by this court.
(iv) Parties are at liberty to make an application to lead further evidence in respect of the file referred to supra
(v) No order as to costs.
SD/-
JUDGE PL*