Karnataka High Court
Harinam Geer S/O Ganesh Geer vs Vilas S/O Venkatrao Manthalkar on 8 April, 2009
Author: Anand Byrareddy
Bench: Anand Byrareddy
IN THE HIGH COURT OF KARNATAKA CIRCUIT 'BENCH . AT GULBARGA on DATED THIS THE 08T DAY OF ee a BEFORE a THE HON'BLE MR. JUSTICE ANAND. BYRAREDDY KF. A.No. 103/206 BETWEEN: 1) Harinam Geer s/o Ganesh Geer Aged 64 years, Occ: Agriculture. R/o Bhalki, Taluka Bhalki, District» Bidar-585 328 _ 2) Smt. Yeshodabai whe oO Harinam Geer | Aged 54 years, Océ: Agriculture, ~ R/o Bhalki, taluka Bhalki, District Bidar-585. 328 me a . APPELLANTS (By Sri .K. v. Swamy, "aavecan AN D: . y Vilas S/o C. Veniatrao Manthalkar, _Aged 44 veers, Occ: Agriculture, 'R/o Bhalki, taluka Bhalki, District Bidar ~585 328. mo 2) Mohan S/o Venkatrao Manthalkar, my Aged 39 years, Occ: Agriculture, . R/o Bhalki taluka Bhalki, District Bidar-585 328 ».. RESPONDENTS
(By Sri Harshavardhan R.Malipatil Advocate) This Regular First Appeal is filed under Section 96 of CPC against the Judgment and Decree dated 24.1), 2005. passed in O.S.No.70/2001 on the file of the Civil Judge (Sr. Dr.) Bholki, decreeing the suit for declaration of ownership. with Perpetual - injunction etc, This Appeal coming on for "hearing torlay, the Court delivered the following: | Heard the counsel for the appellan and respondent. The parties are referred, to by their rank before the Trial Court, for convenience. -
2. The facts briefly siated are as follows:
The present appeal 18 by the defendants in the civil suit filed by 'the plaints, The 'suit was filed seeking the relief of declaration of | ownership and for permanent injunction against the defendants from
- : interfering with land in Sy.No.496/A (Old Sy.No.69/ AA) measuring 7 = acres om guntas and Sy.No.495/AA (Old Sy.No. 73] AA) measuring 7 | . acres 20 guntas, both situated at Bhaiki, Bidar District.
-- 3 It was the case of the plaintiffs that they are brothers and the | suit lands were allotted to them as their share under a partition.
"é, Plaintiff No.3 is the widow of their late brother and farther, the defendants are owners of adjacent land in sy. No, 2495) A (Old No.73AA) measuring 7 acres 20 gisitas, | which is. ons the north- 7 western corner of the land of the Plaintitis, The plaints lain that they have acquired lands in Sy. No. 495 as well as in Sy. No. 496, both of which are adjacent and commonly purchased by the father of the plaintiffs 1 and 2 in the name of Saresh, their deceased brother and husband of plaintiff No. 3. The lands had continued in the name of their brother Suresh and theraftes the tands have been phoded and the names of the. plaintifis as well as the name of Kashi Bai W/o Venkatras has been reflected in. the revenue records. The plaintiffs have paid revenue and ke oshi Bai, their mother having consented, the lands have been mutated in 'favour of the plaintiff No.1 to the extent ~ Of 3 acres 14° guntas and plaintiff No.2, to the extent of 4 acres 6 guntas i in sy. No: 495/AA and Sy.No.496/AA whereas plaintiff No.2 has been allotted 5 acres 8 guntas and Annapoorna Bai, plaintiff no.3 oo has been allotted 2 acres. The revenue records have been mutated to ~ this, effect. This land towards the north corner of Sy.No.495, is the o _ bone of contention. Since there was a dispute about the extent of oo _ and held by the plaintiffs and defendants in Sy.No.495, late Kashi Bai and the plaintiffs had approached the Director of Land Records ZB for measurement of the lands vis-a-vis the lands, of the defendants, The defendants had failed to appear on notice iss cued in 1 this. regard, The Assistant Director of Land Records had thereafter indicated that the matter falls within the jurisdiction of the Tahsitdar, Bhaliei and hence the matter was referred. to the said Authority for further processing.
4, It is however, the complaint of the: plist that the defendants had started enereaching upon the suit. nroperties and it is in this regard that the 2uit was filed. 'The defendants had contested the suit, contending that they. are owners in possession of the land in Sy.No. 495/ 1 measuring 14 acres 37 guntas. It is alleged that the plaintiffs had. manipulated : the entries in the revenue records and . shows as Pessessing 7.acres 20 guntas, while they have cleverly not ~ indice ated the" measurement of Sy.No.496/A and 495 though the plaintiffs ; are. in possession only to the extent of 4 acres 30 guntas in 'Sy. No. 495/ A. 'The record of rights reflects an extent of 7 acres 20 _ 'guntas, which is false and baseless.
os - 5. It is the contention of the defendants that the land in _-- _ Sy.No.495/ 1 measuring 14 acres 37 guntas was their ancestral property and the plaintiffs have no claim over the same and though, 6 an the father of the plaintiffs had purchased a portion. of the land. in the said survey number, the plaintiffs have not indicated the exact measurement of the land so pune 'hased_ It is. 'he case of the defendants that, between the land in Sy. No. 4958/1 1 'and- land Sy.No.495/4, there is a bhandars i in existence. and it continues to be the dividing line between the properties. "At the instance of Kashi Bai, who had raised baseless: claims in "Tespect of the land of the defendants, a joint request \ was tnade for incasurement of the lands through the Asst, Director of Land Records.
6. It is conten by the defendants that the Asst. Director of Land Records having transferred the matter to the Tahsildar, Bhalki, the Tahsildaz had "enquired into the matter in proceedings . No.1/2001-02/RRT /Cr.) and these proceedings were prior to the " suit. ~The 'Tahsildar had carried out a spot inspection and surveyed the lands and that, though the records of rights of Sy.No. 4935/4 7 indicates 7 acres 2 guntas, as held by the plaintiffs the actual
- - possession of the plaintiffs was reflected as 4 acres 30 guntas, which : ise & categorical finding of the Tahsildar in his report in the above said . "proteedings and the record of rights in so far as the defendants are
- concerned, land in Sy.No.495/1 is recorded as measuring 9 acres 12 guntas, but actually the defendants are in possession of the land B measuring 14 acres 37 guntas as reflected in the report, of the Tahsildar and it is the categorical finding arrived. cat by the Fahsildar in his report dated 14.3.2002, It is the. contention of the > plaintift that apart from this unimpeachable finding i in sO far as 'the extent of the land held and possessed by the respective partics in 'the course of the evidence before the Court, the plaintiffs theinselves have admitted the possession as reflected: it in: the report of the Tahsildar. In the face of these findings, 'the Tal Court,. however has proceeded to hold that the sale dees is. pertaining. ai fe) the respective suit properties indicating the: extent of land, th was wholly unnecessary to look into the report of the: Tabsiklar iv giving a finding in favour of the defendants and has proceeded to decree the suit while holding that the plaintiffs ale in "possession of the suit lands in Sy.No.495/AA ; " tal measuring 7 acres 20 guntas and Sy.No. 496/AA measuring 7 | Tes. 8& guntas and it is further decreed that, the defendants are injunicted fom interfering with the possession of the suit land by the ae - plaintiffs. ; 'itis this, which is under challenge in this appeal.
Te it is contended by the counsel for the appellant that the : plaintiffs had themselves applied for the measurement of the land in "question and notice had been issued by the Assistant Director of Land Records on 10.7.2001 and whereas the suit has been filed on & 9.8.2001. The suit proceedings having independently proceeded, the Tahsildar has passed an order after a spot inspection that the lands in possession of the plaintiffs in Sy.No. 4951 4 me asuring 4 acres: 20° gunas and that the defendants owned 'aud possessed land in Sy,.No.495/1 measuring 14 acres 37 guntas. 'The 'Trial Court after having taken into consideration all the: proceedings: as well as the report of the Tahsildar has: failed to address this aspect of the matter. It is significantly contended that. the "plainti No.1 himself has admitted in the course of his CrO3s- "examination as to the actual Possession of the. extent of the land in the face of which, without addressing the report of the » Taheildar or the proceedings which have attained finality, the Triat Court: was not justified in holding that the defendants are 'hot ln possession of the lands and to have injuncted © defendants from interfering with the alleged possession of the plaintifis, The counsel would submit that the primary requirement _ of the plaintifis secking the relief of i injunction was to establish their a possession ; as on the date of the Suit. In the face of the admitted fact, oa ousted from their continued and undisturbed possession over several
- decades as admitted by the plaintiffs themselves. In this regard, the S counsel for the appellant would submit that, notwithstanding the fact the title deeds on which the plaintiffs relied, the. relief of 'injunction which were available on record.
8. While the Counsel for the respondents would submit that the Trial Court has proceeded on the basis of "ote to 'the lands and has held that the title has been establis shed and. i8 also reflected in the record of rights ~ 2s 'to the. extent of Jands held by the plaintiff. Notwithstanding | the peoecedings held by the revenue authorities, the trial Court having fond that the plaintit had established the claim for declaration of tite, the consequential injunction was an incidental relief and the plaintitis 'were entitled to the same. The non- . consis ration of the proceedings before the revenue authorities is
- therefore 1 not fatal to the suit nor can the judgment be set aside on the: ground that the report of the Tahsildar has not been taken into consideration. In so far as the alleged admission by the plaintiff as oe "regards the | possession of the extent of land claim to have been held : by the defendants is concerned, he would submit that this being 7 inconsistent with the very suit of the plaintiff, ought to be reconciled o with the material documents as well as the categorical plaint averments and the trial court therefore, having proceeded on the face a course of cross examination cannot negate the 2 relief which. the plaintiffs are entitled to and hence would submit that the Civil Court is the appropriate forum which decides: the rights « or the parties on the basis of the title deeds ard the findings arrived, therein would override the report of the Tahsildar or other orders pertaining to the order passed by the T absildar as regards the alleged possession and extent of the land held by the. © parties, :
9, On. these € facts and circumstances and the findings of the Trial Court, it is seen on the one, hand, it is conceded that there was a dispute between the parties as regards the extent and possession approach the "Assistant Director of Land Records secking ) measurement, cf the land which having been taken to its logical oe ~-sonclusion by the report of the Tahsildar, was a material piece of
- 'evidence which ought to have been considered by the Trial Court. To os that extent, the learned counsel for the appellant is right in
-- "contending that the Trial Court ought not to negate the report of the é 10 Tahsildar in arriving at a finding of the extent of land i in possession of the parties in considering the grant of relief of j injunction.
10. Further, in so far as the defence sought +t to. be set up by the respondents is concerned to the effect that in the. dace of the. title deeds and the plaint averinents, adiissions by. the plaintit as to the alleged possession of the defendants ough not to negate the relief claimed, is not wholly acceptabie, 'The relief of injunction would necessarily follow only' on: 1 the primary sicund that the plaintiffs are in possession on 1 the date of suit ia. sespect of the property concerned. In the light of ihe independent evidence available to indicate that the possession of the lands was not as claimed in the plaint, it was necessary for the Trial Court to have addressed the question of . possession, and extent. thereof, in addressing the pleadings of the patties, Jia is s the crefore, appropriate that the matter is remanded fora fresh "consideration on this aspect, namely, the effect and . consequence of. an independent finding of the Tahsildar as to the . possession of of the land and inconsistent evidence of the plaintiffs as 1 to the extent in possession, notwithstanding the title deeds or the plaint averments. Hence, it is appropriate that the Trial Court _ | reconsiders the matter on merits in the light of the above observation.
The appeal is, therefore, allowed in part while making it clear that the é 11 dispute centres around the land bearing . sy No. 495, and available on record, Therefore, it would be apt that the Trial Court proceeds from the stage after framing of Issucs. 'The parties are at liberty to tender evidence. afresh as. regards their respective claims. The trial Court shail reconsider the laatter on merits in the light of the above observations. | a Sd/-
JUDGE