Karnataka High Court
Yallappa vs Chanabasappa on 16 February, 2017
Author: P.S.Dinesh Kumar
Bench: P.S.Dinesh Kumar
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IN THE HIGH COURT OF KARNATAKA
DHARWAD BENCH
DATED THIS THE 16TH DAY OF FEBRUARY, 2017
BEFORE
THE HON'BLE MR.JUSTICE P.S.DINESH KUMAR
RSA No.958/2005
BETWEEN
1. SHRI YALLAPPA IRAPPA KUMBAR
SINCE DECEASED BY HIS LEGAL REPRESENTATIVES
1A. Smt. SHANTAWA
W/O. YALLAPPA KUMBAR
AGE: 56 YEARS, OCC: HOUSEHOLD
R/O.RABAKAVI-587 314
TALUKA: JAMAKHANDI
DISTRICT: BAGALKOT
1B. Shri. MAHADEV
W/O.YALLAPPA KUMBAR
AGE: 38 YEARS, OCC: AGRICULTURE
R/O.RABAKAVI - 587 314
TALUKA: JAMAKHANDI
DISTRICT: BAGALKOT
1C. Smt. SATTEWA
W/O.SIDRAM KUMBAR
AGE: 36 YEARS, OCC: HOUSEHOLD
R/O.MAREGUDDI - 587 121
TALUKA: JAMAKHANDI
DISTRICT: BAGALKOT
1D. Smt. BHARATI
W/O.SHANKAR KUMBAR
AGE: 34 YEARS, OCC: HOUSEHOLD
R/O.SATTI - 591 240
TALUKA: ATHANI
DISTRICT: BELGAUM
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1E. Smt. SAVITRI
W/O. MALLIKARJUN KUMBAR
AGE: 32 YEARS, OCC: HOUSEHOLD
R/O. MUDHOL - 587 313
TALUKA: JAMAKHANDI
DISTRICT: BAGALKOT
1F. Shri. SHANKAR YALLAPPA KUMBAR
AGE: 30 YEARS, OCC: AGRICULTURE
R/O.RABAKAVI - 587 314
TALUKA: JAMAKHANDI
DISTRICT: BAGALKOT
1G. Shri. BASAPPA YALLAPPA KUMBAR
AGE: 28 YEARS, OCC: AGRICULTURE
R/O.RABAKAVI - 587 314
TALUKA: JAMAKHANDI
DISTRICT: BAGALKOT
1H. Shri. SHRISHAIL YALLAPPA KUMBAR
AGE: 24 YEARS, OCC: AGRICULTURE
R/O.RABAKAVI - 587 314
TALUKA: JAMAKHANDI
DISTRICT: BAGALKOT
1I. Miss. GEETA
D/O.YALLAPPA KUMBAR
AGE: 20 YEARS, OCC: HOUSEHOLD
R/O.RABAKAVI-587 314
TALUKA: JAMAKHANDI
DISTRICT: BAGALKOT
2. Smt. PARWATEWWA
W/O.TAMMANNA KUMBAR
AGE: 58 YEARS, OCC: HOUSEHOLD WORK
R/O.RABAKAVI, TQ: JAMAKHANDI
3. Shri. MAHADEV
S/O.TAMMANNA KUMBAR
AGE: 23 YEARS , OCC: AGRICULTURE
R/O. RABAKAVI, TQ: JAMAKHANDI
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4. Shri. BASAPPA
S/O.TAMMANNA KUMBAR
R/O.RABAKAVI, TQ: JAMAKHANDI
5. Shri. KALLAPPA
S/O.TAMMANNA KUMBAR
AGE: 21 YEARS , OCC: AGRICULTURE
R/O.RABAKAVI, TQ: JAMAKHANDI
6. Smt. MAHANANDA
W/O.MURIGEPPA KUMBAR
AGE: 33 YEARS , OCC: HOUSEHOLD WORK
R/O.HARUGERI, TQ: RAIBAG
7. Smt. SAYAWWA
W/O.APPASAHEB KUMBAR
AGE: 31 YEARS , OCC: HOUSEHOLD WORK
R/O.HARUGERI, TQ: RAIBAG ... APPELLANTS
(By Sri M.G.NAGANURI, ADV.,)
AND
1. Shri. CHANNABASAPPA
S/O.BASAPPA MUDALGI
SINCE DECEASED BY HIS LEGAL REPRESENTATIVES
1A. Shri. KALLAPPA CHANABASAPPA MUDALAGI
AGE: 60 YEARS, OCC: AGRICULTURE
R/O.KUMBAR ONI, RABKAVI
TALUKA: JAMAKHANDI, DIST: BAGALKOT
1B. Shri. SHANKAR CHANABASAPPA MUDALAGI
AGE: 50 YEARS, OCC: AGRICULTURE
R/O.KUMBAR ONI, RABKAVI
TALUKA: JAMAKHANDI, DIST: BAGALKOT
1C. Smt. SATTEWA
W/O. BHIMAPPA KITTUR
AGE: 58 YEARS, OCC: HOUSEHOLD
R/O.KUMBAR ONI, RABKAVI
TALUKA: JAMAKHANDI, DIST: BAGALKOT
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1D. Smt. ANNAWA
W/O. PARAPPA URABINNAVAR
AGE: 54 YEARS, OCC: HOUSEHOLD
R/O.KUMBAR ONI, RABKAVI
TALUKA: JAMAKHANDI, DIST: BAGALKOT
1E. Smt. PARAWA
W/O.SHIVANAND PALBHAVI
AGE: 52 YEARS, OCC: HOUSEHOLD
R/O.VIDYANAGAR, RABKAVI
TALUKA: JAMAKHANDI, DIST: BAGALKOT
1F. Smt. KASTURI
W/O.BASAPPA MANAGULI @
DHVALESHWAR
AGE: 47 YEARS, OCC: HOUSEHOLD
R/O.MUDALAGI, TALUKA: GOKAK
DIST: BELGAUM
1G. Smt.NEELAWA
W/O. ASHOK SHIRGUPPI
AGE: 48 YEARS, OCC: HOUSEHOLD
R/O.AKKAMAHADEVI ROAD
BIJAPUR
1H. Smt. MEENAXI
W/O. MALLIKARJUN SHIRGUPPI
AGE: 42 YEARS, OCC: HOUSEHOLD
R/O.INDI ROAD, BIJAPUR
1I. Smt. MAHADEVI
W/O.CHANDRASHEKHAR KARALI
AGE: 46 YEARS, OCC: HOUSEHOLD
R/O.SHANTINAGAR, ATHANI
DIST: BELGAUM
1J. Smt. MAHANANDA
W/O. NAGAPPA SANTI
AGE: 44 YEARS, OCC: HOUSEHOLD
R/O.KUMBAR ONI, RABKAVI
TALUKA: JAMAKHANDI, DIST: BAGALKOT
2. BASAVARAJ
S/O.MURUGAYYA BHAGOJIMATH
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AGE: 58 YEARS, OCC: TRADER
R/O RABKAVI, TQ: JAMAKHANDI
... RESPONDENTS
[BY SRI MAHANTESH PATIL, ADV., FOR SRI S S PATIL, ADV., FOR
R1(A-J); R-2 SERVED]
THIS RSA IS FILED U/S 100 CPC AGAINST THE
JUDGMENT AND DECREE DATED:20.11.2004 PASSED IN
RA.NO.7/2002 ON THE FILE OF THE PRL.CIVIL JUDGE (SR.DN.),
JAMAKHANDI, DISMISSING THE APPEAL AND CONFIRMING THE
JUDGMENT AND DECREE DATED:22.11.2001 PASSED IN
O.S.NO.19/1981 ON THE FILE OF THE CIVIL JUDGE (Jr.DN.) &
JMFC, BANAHATTI. TRIAL COURT DISMISSED THE SUIT.
APPELLATE COURT DISMISSED THE APPEAL. SUIT FOR
DECLARATION AND EVICTION.
THIS APPEAL HAVING BEEN HEARD AND RESERVED FOR
JUDGMENT ON 19.11.2016, COMING ON FOR
PRONOUNCEMENT OF JUDGMENT THROUGH VIDEO
CONFERENCE, THIS DAY, THE COURT DELIVERED THE
FOLLOWING:-
JUDGMENT
This appeal is directed against dismissal of the suit for declaration and eviction by the Trial Court in O.S. No.19/1981 on the file of Civil Judge (Jr.Dn.) & JMFC, Banhatti and affirmed by the First Appellate Court in RA No.7/2002. Feeling aggrieved by the concurrent findings of the Courts below, the plaintiffs have presented this appeal.
2. Appeal was admitted to consider following substantial question of law:-
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"Whether the Courts below were justified in discarding the report of the Commissioner for the reasons which are not the reasons given by the defendant in the suit in the objections filed to the Commissioner's report?"
3. However, the learned Counsel for the appellants sought to raise four additional questions of law by filing an interlocutory application. After hearing the learned Counsel on both sides, following additional substantial questions of law was framed.
"Whether the Courts below were justified in law in dismissing the suit by holding that the appellants have not produced title deeds, by ignoring Ex.P3?"
4. Heard Sri M.G. Naganuri, learned Counsel for the appellants and Sri Mahantesh Patil for Sri S.S.Patil, learned Counsel for R1 (A-J) on both questions of law.
5. The case of the plaintiffs in brief is that they are the owners and occupants of open sites in Rabakavi Municipal Limits bearing CTS No.2947 and 2950. Their names were entered after survey and enquiry held two years :7: prior to the date of suit. As per the city survey, to the East of plaintiffs site is Site bearing CTS No.2952; to the West Sites No.2942, 2949, 2948 and 2949 which are public properties. Defendant No.1 purchased the agricultural land bearing Sy.No.94 from defendant No.2. After the City Survey Inquiry, defendant No.1 started asserting ownership over properties bearing CTS No.2947 to 2952. Defendant No.1 has built a house in CTS No.2948 and 2949 without obtaining any permission or licence. He encroached the adjoining properties namely, CTS No.2947 and 2959 to the extent of 176.5 square metres.
6. With these averments, the plaintiffs prayed for a Judgment and Decree of declaration that the defendant No.1 had no title to the area covered by CTS No.2947 to 2952 and consequential relief of eviction of defendant No.1 from the said sites.
7. Suit was resisted by filing written statement denying that the plaintiffs were the owners of CTS No.2947 and 2950 and asserting that the first defendant had built a house in Sy.No.94 after obtaining permission from the Town :8: Municipality. Encroachment over any private or public property was also denied. It was also asserted that the City Survey Officer had not made any enquiry regarding the ownership of suit schedule properties. No notice of enquiry, if any, was given to defendants No.1 or 2. Hence, the enquiry by City Survey Officer is illegal and not binding. It was also claimed that the survey inquiry was false, mischievous, collusive and could not be considered for any purpose. As against the City Survey documents, the defendants had preferred an appeal before the Assistant Commissioner, Jamkhandi, contending that they were in possession of entire Sy.No.94, which comprised of CTS No.2947 and 2950; that the plaintiffs were never in possession of properties bearing CTS No.2947 and 2950; that Plaintiffs' name shown in the property extract would not confirm any title in respect of the suit property; that there is no basis to show that CTS numbers were given to the suit properties; and that even if such numbers were given, they were not conclusive proof of title as the defendants had challenged the same before the Assistant Commissioner.
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8. An additional written statement was also filed contending that the first defendant had not encroached the property either belonging to the public or the plaintiffs. The alleged encroachment to an extent of 176.50 square metres in CTS No.2950 and 144.37 square metres in CTS No.2947 was denied.
9. Based on the pleadings, Trial Court initially framed 5 issues and subsequently, 6 additional issues were framed, which read as follows:
(1) Whether the plaintiffs prove that Defendant No.1 has no title to the area covered by CTS Nos.2947, 2948, 2949, 2950, 2951 and 2952 of Rabkavi? (2) Do plaintiffs prove that they are the owners and they have got title to the area covered under CTS Nos.2947 and 2950 of Rabkavi?
(3) Do plaintiffs further prove that Defendant No.1 is liable to be evicted from the suit sites, particularly from the sites bearing CTS Nos.2947 and 2950? (4) Whether the plaintiffs are entitled to the reliefs sought?
(5) What Order? What Decree?: 10 :
Additional Issues:
(1) Whether the plaintiff proves that the defendant No.1 has encroached East West 16 Mtrs and South North 11 Mtrs in CTS No.2947 and 12.50 Mtrs. East West and 11.55 Mtrs. North-South over CTS No.2950 and the plaintiff is entitled for the above said measurement possession?
(2) Whether Court Fee paid is not correct? (3) Whether this Court has no pecuniary jurisdiction to try and decide the suit?
(4) Whether suit is not maintainable?
(5) Whether suit is barred by limitation? (6) Whether defendant is entitled for compensatory cost of Rs.2000/-."
10. With the above pleadings and issues, parties went to trial. On behalf of the plaintiffs, 4 witnesses were examined and Exs.P1 to P27 were marked. On behalf of the defendants, DWs.1 to 6 were examined and Exs.D1 to D53 were marked.
11. On consideration of evidence on record, the Trial Court held the first 4 issues in the negative. Additional issues : 11 : No.1 to 4 and 6 were also held in the negative. Additional issue No.5 was held in the affirmative and in the result, the suit was dismissed.
12. On appeal, the first appellate Court framed the following points for it's consideration:
"1. Whether trial court has framed proper issues and given its findings in proper manner?
2. Do the appellants prove that findings given by the trial court by way of impugned judgment on the relevant issues is perverse, illegal, arbitrary and the same is capricious one?
3. What order?"
It answered the second point for consideration in the negative and in the result, dismissed the appeal leading to this second appeal.
13. Sri M.G.Naganuri, learned Counsel for the appellants made following submissions:-
(i) that the City Survey Inquiry was conducted under the provisions of the Karnataka Land Revenue Act, 1964 ('Act' for short). As per the Karnataka Survey Manual, : 12 : Rabakavi and Banahatti Towns were brought under the purview of City Survey in the year 1977;
(ii) that the constitution and powers of the Revenue Officers is described under Chapter II of the Act. Survey Officers are defined under Section 18 of the Act. There is a separate hierarchy in the Revenue Department created for the purposes of survey of Revenue lands and the cities. The survey, assessment and settlement of land revenue and settlement of boundaries and connected matters are assigned to the officers, who are designated as Director of Survey Settlement & Land Records; and his subordinate other officers in the hierarchy;
(iii) that the boundaries and boundary marks are dealt with in Chapter XII. Effect of settlement of a boundary under Chapter XII determines proper alignment of boundary line and the rights of landholders on either side of the boundary. Under Section 142(2), the Tahasildar shall have power to evict a landholder who is in wrongful possession of the land;: 13 :
(iv) that the adjudication made under the Act by the hierarchy of officers shall be subject to appeal in Revision as provided in Chapter V of the Act.
The jurisdiction is dealt in Chapter VI and in terms of Section 61, the Revenue Courts shall have jurisdiction to determine and decide any matter under the Act and the jurisdiction of the Civil Court is expressly barred;
(v) that the City Survey Officer conducted an enquiry in consonance with the procedure prescribed in Chapter IV of the Karnataka City Survey Manual and prepared the Revenue map and the Enquiry Register. The officer deriving power under Section 37 and Section 67(2) of the Act and other agnate provisions have prepared the Property Register;
(vi) that the names of plaintiffs is found against properties described as CTS No.2947 and 2950 in the City Survey Inquiry Map - Ex.P3. The said Ex.P3 was challenged by the first defendant in an appeal before the Assistant Commissioner in AP CTS 2/1999 as per Ex.P7, contending inter alia that he had established a Dying : 14 : Factory, Cattle Shed and Gas Plant in his land bearing Sy.No.94; that the plaintiffs had got their names entered illegally in the City Survey Inquiry Register in respect of some portions of the property. On this premise, he prayed for setting aside the order of the City Survey Officer, Rabakavi - Banahatti in respect of CTS No.2947 and 2950. A spot inspection was conducted and on perusal of the PT Sheet, a finding was given by the appellate authority that the appellant therein namely, the 1st defendant had encroached upon both Government and Private Properties. The extent of encroachment described in the said order reads as follows:-
Sl.No. CTS No. Ownership Extent of encroachment
1. 2948 TMC, Rabakavi Banahatti 73-50 sq. mtrs
2. 2949 Government 194-75 "
3. 2951 Government 6-32 "
4. 2947 Private 13-23 "
5. 2950 Private 153-00 "
The appeal was allowed in part by order dated 31.7.1982 (Ex.P7) in respect of CTS No.2947 and 2950 : 15 : holding that the said properties are private properties and the parties may approach the Civil Court with their claim over the said properties. In respect of CTS No.2948, the Town Municipal Corporation was called upon to take action for removal of encroachment. The City Survey Officer and the Tahasildar were directed to take action for removal of encroachment of Government Property bearing CTS No.2949 and 2951;
(vii) that the aforementioned order passed by the Assistant Commissioner was challenged before the Special Deputy Commissioner, Bijapur in CTS.AP.16/82-83 in a Revision Petition. By order dated 20.5.1985 (Ex.P8), the Revision Petition was allowed and remanded directing the Assistant Commissioner to get the lands and the CTS plots surveyed and fix the boundaries of survey number to ascertain the encroachment, if any as alleged by the parties;
(viii) that after remand, the Assistant Commissioner in Proceedings No.CTS.80.2/81 vide order dated 17.7.1986 (Ex.P9) recorded a finding that the applicant (the 1st : 16 : defendant) had encroached into Government land bearing CTS No.2949 and 2951 to an extent of 400 square meters and 7-50 square meters and over the private land bearing CTS No.2947 and 2950. After conducting a spot inspection and hearing the parties, the Assistant Commissioner dismissed the appeal filed by the first defendant with a direction to the City Survey Officer, Rabakavi to ensure that the land encroached by the first defendant is removed;
(ix) thus, it was conclusively held that the first defendant had encroached upon both Government land as well as the lands belonging to the plaintiffs. In respect of the lands belonging to the Government, appropriate directions were issued to remove the encroachment.
Since the suit schedule properties belonged to the plaintiffs, they were compelled to approach the Civil Court by filing the instant suit seeking a declaration that the plaintiffs be declared as owners of CTS No.2947 and 2950 of Rabakavi Town and consequently for possession;
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(x) that both the Trial Court and first appellate Court misdirected themselves on two aspects. The first one being a legally impermissible premise that the plaintiffs did not produce any document of title and the second being an extraneous assumption that the survey records were doctored by one 'Kumbar' who was working with the City Survey Department in Rabakavi in the year 1977-78. He adverted to paragraphs No.17 to 20 of the Judgment of the lower appellate Court to substantiate these two aspects and contended that this is a case in which both Courts below have misread the evidence on record and dismissed the suit.
14. In sum and substance, the learned Counsel for the appellants submitted that the plaintiffs were in possession of their ancestral land in their own right as the owners. Rabakavi Town was brought under the purview of City Survey in the year 1977. Survey and Enquiry were conducted in accordance with the provisions of the Act and the procedure laid down in the survey manual. Revenue record namely, Survey Register was prepared, wherein, the : 18 : properties belonging to the plaintiffs were given City Survey Numbers as 2947 and 2950. Pursuant thereto, property cards were also issued to the plaintiffs. The 1st defendant claims to have purchased the property under the Sale Deed dated 17.10.1979, which is subsequent to the date of survey. The defendants challenged the entries in the survey register before the appropriate authorities in the revenue hierarchy and lost their claim before the Assistant Commissioner. In view of express bar of jurisdiction of Civil Courts under Section 61 of the Act, the finding recorded by the Revenue Authorities had attained finality. Therefore, the plaintiffs were entitled for the prayers made in the plaint. Accordingly, he prayed for allowing this appeal.
15. Per contra, Sri Mahantesh Patil for Sri S.S.Patil, learned Counsel for the respondents vehemently opposed this appeal and made following submissions:
i) that this appeal does not merit any consideration in law on the ground that both Courts below have recorded a concurrent finding of fact that the plaintiffs were unable to establish their title. Placing reliance on paragraph : 19 : No.11 of the Judgment of the Hon'ble Supreme Court in the case of Nasib Kaur and others v. Colonel Surat Singh (deceased) through LRs. and others reported in (2013)5 SCC 218, he contended that it is impermissible in law for the High Court to interfere in the instant appeal as both the Courts below have concurrently held that the plaintiffs were unable to prove the title;
ii) placing reliance on paragraph No.30 of the judgment of the Hon'ble Supreme Court in the case of Vishwanath Agrawal s/o Sitaram Agrawal v. Sarla Vishwanath Agrawal reported in (2012)7 SCC 288, he contended that the High Court shall not exercise its' jurisdiction under Section 100 CPC and disturb the concurrent finding of facts;
iii) adverting to facts, he submitted that there is no document of title brought on record by the plaintiffs to substantiate the claim of ownership. Hence, the source of title is not proved;: 20 :
iv) First Defendant has purchased his property for a lawful consideration and took possession of the same in his own right as the title-holder. Ex.D1 is the Sale Deed in favour of defendant No.1 and the same is on record. The Property Register Extracts- Exs.D27 and D28 are the documents issued by the City Survey Authorities and bear the name of first defendant. Hence, the title of the first defendant is established both under the Sale Deed
- Ex.D1 and under Property Register Card Extracts -
Exs.D27 and D28 issued by the City Survey Department which conclusively establish that the first defendant is in possession of the property in question in his own right as a lawful owner.
v) On appreciation of the evidence on record, both Courts have concurrently held that the plaintiffs have not produced any document of title and the City Survey Records stood vitiated due to manipulation made by one 'Kumbar' belonging to the caste of the plaintiffs. Thus, both on law and facts the appeal is devoid of merit and accordingly prayed for dismissal of this appeal. : 21 :
16. I have given my careful consideration to the submissions of learned Counsel for the parties and perused the records.
17. In the light of the averments contained in the pleadings, oral and documentary evidence on record and the rival contentions urged by both the learned Counsel in this appeal, the substantial questions of law are examined. The 1st substantial question of law could not be examined in as much as objections to the Commissioner's report on which the question was framed is not on record. While examining the second substantial question of law, it needs to be analysed as to whether the entries made in the City Survey Register after holding an enquiry under the provisions of Karnataka Land Revenue Act, 1964 attained finality and whether they can be looked into for the purpose of ownership?
18. At the outset, it is to be noted that Rabakavi Town was brought within the purview of City Survey in the year 1977. Survey was conducted by the officers authorised under : 22 : the Act. Survey is required to be conducted as prescribed in the Karnataka Survey Manual. After enquiry, City Survey Register is prepared and Ex.P3 is the Extract of the Register. The property held by second plaintiff, Tammanna was allotted CTS No.2947 and the property owned by first plaintiff, Erappa was allotted CTS No.2950 as per the decision dated 2.1.1978. The right of owners in respect of both properties is mentioned 'ancestral'.
19. As noted in the summary of submissions on behalf of the appellants, 1st defendant - respondent initially challenged the entry of names of the plaintiffs in respect of CTS No.2947 and 2950 before the appropriate authority namely, the Assistant Commissioner, Jamkhandi. As per Ex.P7, the Assistant Commissioner has recorded a finding of fact that the respondents had encroached upon the properties belonging to the plaintiffs as also two other properties belonging to the Government bearing CTS No.2949 and 2951 and the property belonging to the Town Municipality bearing CTS No.2948. It is also on record that directions were issued to the City Survey Officer and the Tahasildar to take action : 23 : for removal of encroachment of Government properties by the 1st defendant. Town Municipality was advised to take action for removal of encroachment and the private parties were left to exercise their option to approach the Civil Court. Defendants challenged the said order passed by the Assistant Commissioner before the Special Deputy Commissioner, who remanded the matter back to the Assistant Commissioner as per Ex.P8. After remand, the defendants' appeal was dismissed as per Ex.P9 by the Assistant Commissioner. In the said order, the Assistant Commissioner has recorded a finding of fact that the applicant therein (first defendant) had purchased the property bearing Sy.No.94; that he had not constructed the flourmill or any other building as claimed; and that Sy.No.94 has been encroached by third parties, who had constructed their houses. He has also categorically held that the City Survey was conducted in 1978 and the applicant (1st defendant) had purchased the property in 1979. The order as per Ex.P9 dated 17.7.1986 passed by the Assistant Commissioner, Jamkhandi in CTS-AP-2/81 has attained finality.
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20. The Trial Court has examined issues No.1 and 2, which deal with the title to the suit schedule properties without bestowing attention to the exclusive jurisdiction vested in the Revenue Courts under the Act. The trial Court has recorded that much stress was laid upon Exs.P3 (Survey Register), P4, P5 and P6 by the Counsel for the plaintiffs but not considered them on the premise that they were the documents prepared by the City Survey Authorities without examining the previous ownership of the properties, namely CTS No. 2947 and 2950. It has held that no sanctity could be attached to those documents. The Trial Court has noted at more than one occasion that the plaintiffs have not produced any earlier title documents in respect of CTS No.2947 and 2950. It has also noted that the first defendant had purchased the property from its erstwhile owner.
21. The second aspect which has weighed with the Trial Court is the testimony of a retired Surveyor that prior to his incumbency, one 'Kumbar' was working in the office of the City Survey. The Trial Court has recorded the contentions urged by the learned Counsel for the defendants that the : 25 : plaintiffs had got concocted the property extracts from the office of the City Survey with the help of an officer belonging to the community of plaintiffs. Without recording any reasons, the Trial Court has come to a sudden conclusion that the survey documents could have been created in collusion with the said Mr.Kumbar. Regrettably, this assumption is not supported by any cogent evidence nor a logical reasoning.
22. Thus, the Trial Court examined the entire case keeping in mind the said two aspects. Firstly, non production of title deeds by the plaintiffs and secondly, a possible concoction of survey documents by one Mr. Kumbar.
23. Land Revenue Act governs the Revenue matters. It is vested with exclusive jurisdiction over the revenue matters concerning Survey and Settlement. Admittedly, the Survey of Rabakavi Town and preparation of Property Register Extracts was prior to the date of the Sale Deed under which the first defendant claims ownership of agricultural property bearing Sy.No.94. As noted supra, he has made all his efforts by filing appeals in the hierarchy of revenue adjudication but : 26 : lost his claim. The very fact that the first defendant has acquired an agricultural piece of land after the Rabakavi Town coming under the purview of City Survey warranted him to get the entries corrected with the City Survey Department, which he attempted but failed. Particularly, the Order of the Assistant Commissioner as per Ex.P9 is unambiguous and attained finality. The said order has been passed after due notice to all parties and affording an opportunity of hearing. A spot inspection has also been conducted. There is a categorical finding recorded therein that the land bearing Sy.No.94 was encroached upon by different persons and they had built their houses and further that the first defendant had not built any flourmill nor put up any other construction. This finding of fact having attained finality ought to have received careful consideration in the hands of the Trial Court. But, the Trial Court lost sight of the fact that there exists a separate adjudicatory mechanism under the Karnataka Land Revenue Act with regard to Survey and Settlement. It also got swayed with the argument of manipulation of documents by a person belonging to the community of the plaintiffs without there being any evidence on record.
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24. The First Appellate Court mechanically toed the line of reasoning of the Trial Court and affirmed the finding with regard to manipulation of documents. It initially took note of the fact that the names of the plaintiffs were found in the City Survey Records in respect of the suit properties. However, it also fell into an error by only looking for a Sale Deed or other documents of title and dismissed the appeal. Thus, both the Courts below did not bestow their attention to the independent jurisdiction of Revenue Courts and Revenue Authorities, which resulted in dismissal of the suit. With regard to the allegation of manipulation, the First Appellate Court accepted the view of the Trial Court without re- appreciation of evidence by precisely stating thus:
19. ............'On the basis of available evidence, trial Court is (sic has) observed that entry of plaintiffs' name appears to be in collusion with the said Kumbar'............
25. Thus, it is a clear case, wherein the Trial Court as also the First Appellate Court have misread the evidence on : 28 : record and did not consider the provisions of the Revenue Act.
26. With regard to the manipulation of survey records, the Trial Court based on it's finding on 'surmise and probability' and the First Appellate Court put it's stamp of approval on the said finding without re-appreciation of evidence independently.
27. This Court is conscious of the fact that the scope of interference is extremely narrow in a second appeal under Section 100 CPC. However, it is trite law that the High Court can interfere when the finding of fact recorded by the courts below is perverse. It may be profitable to extract the following passages from the judgment of the Hon'ble Supreme Court in the case of P.Chandrasekharan v. S. Kanakarajan reported in (2007) 5 SCC 699:
"15. The question recently came up for a consideration before this Court; albeit in a case under Section 130-A of the Customs Act, in Commr. Of Customs (Preventive) v. Vijay Dasharath Patel [(2007) 4 SCC 118 :
(2007) 4 scale 132] wherein it was held: (SCC p. 128, paras 22-25) : 29 : "22. We are not oblivious of the fact that the High Court's jurisdiction in this behalf is limited. What would be substantial question of law, however, would vary from case to case.
23. Moreover, although, a finding of fact can be interfered with when it is perverse, but, it is also trite that where the courts below have ignored the weight of preponderating circumstances and allowed the judgment to be influenced by inconsequential matters, the High Court would be justified in considering the matter and in coming to its won independent conclusion. (See Madan Lal v. Gopi [(1980) 4 SCC 255 : AIR 1980 SC 1754].)
24. The High Court shall also be entitled to opine that a substantial question of law arises for its consideration when material and relevant facts have been ignored and legal principles have not been applied in appreciating the evidence. Arriving at a decision, upon taking into consideration irrelevant factors, would also give rise to a substantial question of law. It may, however, be different that only on the same set of facts the higher court takes a different view. [See Collector of Customs v. Swastic Woollens (P) Ltd. [1988 Supp SCC 796 : 1989 SCC (Tax) 67] and Metroark Ltd. V. CCE [(2004) 12 SCC 505].]
25. Even in a case where evidence is misread, the High Court would have power to interfere. (See W.B.Electricity Regulatory Commission v. CESC Ltd/ [(2002) 8 SCC 715] : 30 : and also Commr. Of Customs v. Bureau Veritas [(2005) 3 SCC 265].)"
16. This Court in Hero Vinoth [(2006) 5 SCC 545] held: (SCC pp. 555-556, para 24) "24. The principles relating to Section 100 CPC relevant for this case may be summarized thus:
(i) An inference of fact from the recitals or contents of a document is a question of fact. But the legal effect of the terms of a document is a question of law. Construction of a document involving the application of any principle of law, is also a question of law. Therefore, when there is misconstruction of document or wrong application of a principle of law in construing a document, it give rise to a question of law.
(ii) The High Court should be satisfied that the case involves a substantial question of law, and not a mere question of law. A question of law having a material bearing on the decision of the case (that is, a question, answer to which affects the rights of parties to the suit) will be a substantial question of law, if it is not covered by any specific provisions of law or settled legal principle emerging from binding precedents, and, involves a debatable legal issue. A substantial question of law will also arise in a contrary situation, where the legal position is clear, either on account of express provisions of law or binding precedents, but the court below has decided the matter, : 31 : either ignoring or acting contrary to such legal principle. In the second type of cases, the substantial question of law arises not because the law is still debatable, but because the decision rendered on a material question, violates the settled position of law.
(iii) The general rule is that High Court will not interfere with the concurrent findings of the courts below. But it is not an absolute rule. Some of the well-recognised exceptions are where (i) the courts below have ignored material evidence or acted on no evidence; (ii) the courts have drawn wrong inferences from proved facts by applying the law erroneously; or (iii) the courts have wrongly cast the burden of proof. When we refer to 'decision based on no evidence', it not only refers to cases where there is a total dearth of evidence, but also refers to any case, where the evidence, taken as a whole, is not reasonably capable of supporting the finding."
17. When thus the courts below misread and misinterpreted a document of title read with other documents and the plan for the identification of the suit lands whereupon the plaintiffs themselves relied upon, a substantial question of law arose for determination of the High Court in between the parties to the suit".
(emphasis supplied)
28. The learned Counsel for respondents has placed reliance on two judgments of the Hon'ble Supreme Court in the case of Vishwanath Sitaram Agrawal v. Sau. Sarla : 32 : Vishwanath Agrawal reported in 2012 AIR SCW 4300 and Nasib Kaur & Ors. v. Col. Surat Singh (Deceased) Through L.Rs & Ors. with Nasib Kaur & Ors. v. Mrs.Dulari Singh & ors., reported in 2013 AIR SCW 1299.
(i) In the case of Vishwanath Agrawal, relied upon by the learned Counsel for the respondents, the Hon'ble Supreme Court has held as follows:-
"30. In Vidhyadhar v. Manikrao and another, it has been ruled that the High Court in a second appeal should not disturb the concurrent findings of fact unless it is shown that the findings recorded by the courts below are perverse being based on no evidence or that on the evidence on record, no reasonable person could have come to that conclusion. We may note here that solely because another view is possible on the basis of the evidence, the High Court would not be entitled to exercise the jurisdiction under Section 100 of Code of Civil Procedure. This view of ours has been fortified by the decision of this Court in Abdul Raheem v. Karnataka Electricity Board & Ors."
(Emphasis supplied)
(ii) In the case of Nasib Kaur and others, the learned Counsel for the respondents placed reliance on paragraph No.11, which reads as follows:
"11 ....................The appellants were, thus, in legal possession of the suit property and the High Court : 33 : in exercise of its power under Section 100, CPC could not have reversed the findings of the trial court and the first appellate court and decreed the suits for declaration of title and for recovery of possession and injunction in favor of the respondents so as to adversely affect such legal possession of the appellants".
29. In the instant case, by applying the principles laid down in the above cases, I am of the view that the findings recorded by the Trial Court is perverse for the following reasons:-
Firstly, that the Trial Court lost sight of the fact that the Survey and Settlement and all adjudication pursuant thereto fall within the exclusive domain of the hierarchical jurisdiction under the Act. Further, the finding recorded by the quasi-judicial authorities appointed and acting under the provisions of the Act had attained finality. The competent Revenue Authority has recorded in the enquiry proceedings that the suit schedule properties are ancestral properties. The said authority has also directed for removal of encroachment over Government property and left the appellants to seek redressal before a civil Court. This finding having attained finality, the Trial Court, in my view committed an error in : 34 : over looking this finding by tangentially looking for a Sale Deed or a similar document to declare plaintiffs' title.
Secondly, the Trial Court fell in an error in accepting the contention of the defendants that the revenue documents from the City Survey Office were manipulated. It is no more res integra that any amount of suspicion cannot take the place of proof and in the absence of the cogent evidence, the Trial Court could not have accepted the theory of manipulation without cogent evidence. Therefore, in my considered view, this case falls within the exception clause as held in paragraph No.30 of the judgment of Hon'ble Supreme Court in the case of Vishwanath Agrawal, (supra) that no reasonable person could have come to such conclusion.
30. Adverting to paragraph No.11 in the case of Nasib Kaur and others, in my considered view, the reasons stated herein above, clearly point to the fact that the material evidence was not re-examined by the First Appellate Court. Instead, it mechanically toed the line of the Trial Court and approved it's findings. Therefore, both the judgments cited by the learned Counsel for the respondents do not lead the : 35 : case of respondents any further. On the other hand, judgment in the case of Vishwanath Agrawal supports the case of appellants, which is to the effect that findings of facts may be interfered with if they are perverse and no reasonable person could have come to such conclusion.
31. In the result, this appeal merits consideration and deserve to be allowed. Hence, the following:-
ORDER
(i) Appeal is allowed;
(ii) The Judgment and Decree dated 20.11.2004 of the First Appellate Court in R.A.No.7/2002 confirming the Judgment and Decree dated 22.11.2001 of the Trial Court in O.S.No.19/1981 is set aside;
(iii) Suit is decreed, declaring that the plaintiffs are the titleholders of the property bearing CTS No.2947 and 2950 of Rabakavi Town;
(iv) Consequently, the respondents are directed to vacate and hand over the encroached area in both CTS No.2947 and 2950 of Rabakavi Town;
Registry to draw the decree accordingly.
No costs.
Sd/-
JUDGE cp*