Karnataka High Court
Shankarnarayan vs Bhagirathi on 22 February, 2022
Author: B.M. Shyam Prasad
Bench: B.M. Shyam Prasad
1
IN THE HIGH COURT OF KARNATAKA
DHARWAD BENCH
DATED THIS THE 22nd DAY OF FEBRUARY 2022
BEFORE
THE HON'BLE MR. JUSTICE B.M. SHYAM PRASAD
Writ Petition No.100633 of 2021 (GM-CPC)
BETWEEN
1. SHANKARNARAYAN
S/O MAHABALESHWAR BHAT,
AGE 60 YEARS, OCC AGRICULTURE,
R/O KALGAR, POST ADUKATTA,
TQ SIDDAPUR,
DIST UTTARA KANNADA-581355.
2. JAGADISH
S/O MAHABALESWAR BHAT,
AGE 46 YEARS, OCC AGRICULTURE,
R/O KALGAR, POST ADUKATTA,
TQ SIDDAPUR-518355.
DIST UTTARA KANNADA. ...PETITIONERS
(BY SRI. NARAYAN V. YAJI, ADVOCATE)
AND
1. BHAGIRATHI
W/O SUBRAY MANJAYYA HEGDE,
AGE 74 YEARS, OCC AGRICULTURE,
R/O KALGAR, POST ADUKATTA,
TQ SIDDAPUR,
DIST UTTARA KANNADA-581355.
2. RAGHAVENDRA K.S.
S/O SUBRAY MANJAYYA HEGDE,
2
AGE 44 YEARS, OCC AGRICULTURE,
R/O KALGAR, POST ADUKATTA,
TQ SIDDAPUR.
DIST UTTARA KANNADA-581355.
3. USHA H.S
W/O SHREEDHARA H.G
AGE 42 YEARS, OCC AGRICULTURE,
R/O HARAVALLE, POST EDUVANE,
TQ SAGAR,
DIST SHIVAMOGGA-577421
4. F M DEVARU S/O RAM BHAT,
AGE 62 YEARS, OCC AGRICULTURE,
R/O KALGAR, POST ADUKATTA,
TQ SIDDAPUR,
DIST UTTARA KANNADA-581355.
...RESPONDENTS
(BY SRI. VISHWANATH BICHAGATTI, ADVOCATE )
THIS WRIT PETITION IS FILED UNDER ARTICLES
226 & 227 OF THE CONSTITUTION OF INDIA PRAYING TO
ISSUE A WRIT IN THE NATURE OF CERTIORARI AND
QUASH THE IMPUGNED ORDER DATED 29.07.2020
PASSED IN O.S.NO.59/2014 BY THE LEARNED SENIOR
CIVIL JUDGE, SIRSI SITTING AT SIDDAPUR VIDE
ANNEXURE-G TO THE WRIT PETITION AS IT IS ILLEGAL
AND UNCONSTITUTIONAL ISSUE A WRIT, AMNDAMUS,
DIRECTION OR DECLARATION OR PASS SUCH OTHER
ORDERS, AS THIS HON'BLE COURT DEEMS FIT UNDER
THE FACTS AND CIRCUMSTANCES OF THE CASE.
THIS WRIT PETITION COMING ON FOR ORDERS,
THIS DAY, THE COURT MADE THE FOLLOWING:
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ORDER
The petitioners, who are defendants in O.S. No.59/2014 on the file of the Senior Civil Judge at Sirsi, Sitting at Siddapur (for short, 'the Civil Court'), have impugned the civil Court's order dated 29.07.2020. The Civil Court has refused to mark the agreement dated 23.01.1985 holding such document to be inadmissible in evidence for want of registration and because of earlier orders of this Court in R.S.A. No.5303/2010, which is disposed of on 16.08.2013.
2. A brief statement of facts leading to this petition would be that the ancestors of the petitioners and the defendants have entered into an agreement on 23.01.1985 [the subject document], and in terms of the subject document, they have exchanged certain properties and have also agreed upon utilization of Betta privileges in Betta land in Sy.No.140 and Sy. 4 No.144 of Musuvalli Village of Siddapur Taluk. Later, the petitioners' ancestors have commenced their suit for permanent injunction in O.S. No.44/1994 as regards the right to use betta privileges in the aforesaid betta lands. Though the suit in O.S. No.44/1994 is decreed, it is dismissed in the regular appeal in R.A. No.37/1997. The appellate Court's order is confirmed by this Court with the dismissal of the second appeal in R.S.A. No.5303/2010.
3. This Court has found that betta privilege is a privilege appended to specific lands and this privilege goes with the ownership of such land. If there is any assignment of this privilege, such assignment must be decided by the concerned [the Betta Officer] under the provisions of Rule 131(f) of the Karnataka Forest Manual. Further, this Court has reserved liberty to the petitioners' ancestors to approach the Betta Officer for recognition of the arrangement under the subject 5 document. The second petitioner has indeed filed application before the aforesaid Betta Officer and the petitioner's application is disposed of by the order dated 27.07.2016.
4. In the meanwhile, the respondents have filed the present suit in O.S. No.59/2014 for permanent injunction against interference with enjoyment of the betta privileges in the aforesaid betta lands and also their own lands in Sy. No.196 & 205 of Musuvalli Village, Siddapur Taluk. The petitioners to substantiate their defence that they have been using betta privileges in betta lands in terms of the arrangement under the subject document, seek leave to produce and mark this document as an exhibit in evidence.
5. The civil Court has rejected the petitioner's application referring to the exchange of certain other properties, but without reference to the agreement as regards the betta lands. The civil Court has opined that 6 the subject document should have been registered under the provisions of Section 17 of the Indian Registration Act, 1908 and cannot be permitted to be marked even for collateral purposes. The exchanged properties are neither the betta lands nor the lands to which the betta privileges are appended and therefore, not the subject matter of the dispute. In fact, it becomes obvious on perusal of the subject document and the impugned order that the civil Court has not even considered that part of the subject document which refers to the agreement as regards the usage of the betta privilege.
6. This agreement as regards the betta privilege is that the petitioners' ancestor Sri. Mahabaleshwar Shambulinga Bhat would be entitled for the betta privilege in Sy.No.140 and the betta privilege in Sy.No.144 will be utilized by both the petitioners' ancestor, Sri. Mahabaleshwar Shambulinga Bhat, and 7 the respondents' ancestor, Sri. Ram Putta Bhat. If the document styled as the subject document incidentally records an arrangement as regards utilization of betta privileges, this Court is of the considered opinion that the document cannot be kept out from being marked as an exhibit on the ground that it is not registered under the provision of the Indian Registration Act, 1908. This document in the circumstances of the case could be marked as an exhibit to this limited extent and for collateral purposes. Of course, the civil Court will have to examine whether the petitioners, or the respondents, would be entitled to betta privileges in the betta land in the light of the proceedings under the provisions of Rule 131 of the Karnataka Forest Manual, the terms of the agreement and the other material on record.
Therefore, the petition is allowed. The impugned order dated 29.07.2020 passed in O.S. No.59/2014 by the Civil Court is quashed and the document styled as 8 the subject document must be marked as an exhibit for collateral purpose and with liberty to the respondents to contest the document on all grounds notwithstanding any observation made by this Court in the course of the order.
Sd/-
JUDGE Kms