Karnataka High Court
Guruswamy S/O Appayya Ors vs Siddayya S/O Mahadevayya Wadeyar Ors on 28 June, 2017
Author: B.V.Nagarathna
Bench: B.V.Nagarathna
1
IN THE HIGH COURT OF KARNATAKA
KALABURAGI BENCH
DATED THIS THE 28TH DAY OF JUNE 2017
BEFORE
THE HON'BLE MRS. JUSTICE B.V.NAGARATHNA
REGULAR SECOND APPEAL No.7001 OF 2012
BETWEEN:
1. Guruswamy S/o Appayya,
@ Appanna Wadeyar,
Age 68 years, Occ. Service,
R/o Nagawad, Tq. Bagewadi,
Now at Kittur Channamma Nagar,
Bijapur - Sholapur Road,
Bijapur - 586 101.
2. Basayya S/o Appayya
@ Appanna Wadeyar,
Age 65 years, Occ. Agriculture,
R/o Nagawad, Tq.B.Bagewadi,
Dist. Bijapur - 586 101.
3. Shivayya S/o Appayya
@ Appanna Wadeyar,
Age 61 years, Occ. Agriculture,
R/o Nagawad, Tq. B.Bagewadi,
Dist. Bijapur - 586 101.
4. Yallavva W/o Appayya
@ Appanna Wadeyar,
Age 89 years, Occ. H.H.Work,
R/o Nagawad, Tq. B.Bagewadi,
Dist. Bijapur - 586 101.
5. Shantamma W/o Bakkayya Pujari,
Age 52 years, Occ. H.H.Work,
R/o Sarur, Tq. Muddebihal,
2
Dist. Bijapur - 586 101.
6. Neelavva W/o Nijalingappa Vandal,
Age 58 years, Occ. H.H.Work,
R/o Masuti,
Now at Nagawad, Tq.B.Bagewadi,
Dist. Bijapur - 586 101.
(Appellant Nos.5 and 6 deleted
as per order dated 24.04.2017)
...Appellants
(By Sri Ajaykumar A.K, Advocate and
Sri Ashok S.Kinagi, Advocate for Appellant Nos.1 to 4)
AND:
1. Siddayya S/o Mahadevayya Wadeyar,
Age Major, Occ. Agriculture,
2. Malapayya S/o Mahadevayya Wadeyar,
Age Major, Occ. Agriculture,
3. Somalingayya S/o Mahadevayya Wadeyar,
Age Major, Occ. Agriculture,
4. Sangayya S/o Mahadevayya Wadeyar,
Age Major, Occ. Agriculture,
All are R/o Nagawad, Tq. B.Bagewadi,
Dist. Bijapur - 586 101.
5. Shantamma W/o Bakkayya Pujari,
Age 52 years, Occ. Household Work,
R/o Sarur, Tq. Muddebihal,
Dist. Bijapur.
6. Neelavva W/o Nijalingappa Vandal,
Age 58 years, Occ. H.H.Work,
R/o Masuti,
Now at Nagawad, Tq.B.Bagewadi,
Dist. Bijapur.
...Respondents
3
This Regular Second Appeal is filed under Section 100 of
CPC against the judgment and decree dated 20.09.2011 passed
in R.A.No.4/2008 on the file of Senior Civil Judge at Basavana
Bagewadi, wherein the appeal was dismissed and the judgment
and decree dated 30.01.2008 passed in O.S.No.5/1998 on the
file of Civil Judge (Jr.Dn.) Basavana Bagewadi was confirmed.
This appeal coming on for admission this day, Court
delivered the following:
JUDGMENT
This is plaintiff's second appeal. The original plaintiff Appanna, since deceased and represented by his legal representatives, had filed O.S.No.5/1998, on the file of Civil Judge (Jr.Dn.), Basavana Bagewadi. That suit was partly decreed by judgment and decree dated 30.01.2008. Being aggrieved by the partial decree of the suit, the legal representatives of original plaintiff filed R.A.No.4/2008, before the Senior Civil Judge, at Basavana Bagewadi. That appeal has been dismissed by judgment dated 20.09.2011 by confirming the judgment and decree of the trial court passed in O.S.No.5/1998. Being aggrieved by the 4 judgment of the courts below, this second appeal has been preferred.
2. For the sake of convenience, the parties herein shall be referred to, in terms of their status before the trial court.
3. The original plaintiff since deceased, represented by his legal representatives, filed the suit seeking declaration that he is the owner of Consolidated Block No.133 (C.B.No.133), measuring 02 Acres 25 guntas of Nagawad Village and land bearing Consolidated Block No.134 (C.B.No.134) measuring 01 Acre 23 Guntas of the same village and a direction was given to the defendants to hand over 11 guntas of land to the plaintiff and also consequential relief of permanent injunction. According to the plaintiff, he is the owner of the aforesaid lands, consolidated block proceedings were introduced in the year 1978, in Basavana Bagewadi. Prior to consolidation of C.No.133, it comprised land bearing R.S.No.103/2B, measuring 25 guntas; 103/2C/1, measuring 23 guntas and 5 103/2C/2, measuring 01 Acre 14 guntas. These three survey numbers were consolidated and given new C.B.No.133, measuring 02 Acres 25 guntas, which is evidenced by land records. Likewise, land bearing C.B.No.134, is a consolidated holding comprising of 01 Acre 23 guntas. However, defendants have asserted that their land measures 02 acres 06 guntas and have claimed the same during the consolidation proceedings in respect of R.S.No.103/A and R.S.No.103/2C, which have been given C.B.No.134, which is false. That plaintiff's land measures 02 acres 25 guntas and since the date of consolidation, plaintiff is in possession of the said extent of land in C.B.No.133, without any threat or obstruction from any quarter. Defendants are in possession of C.B.No.134 measuring 01 Acre 23 guntas. According to the plaintiff, defendants got measured their land by suppressing the fact that it measures 01 acre 23 guntas. The survey revealed that the plaintiff had encroached to an extent of 11 guntas and the PT sheet prepared by the Survey Officials, was created to the convenience of the 6 defendants. Therefore, plaintiff preferred an appeal before Additional Director of Land Records (ADLR) and Deputy Director of Land Records (DDLR). DDLR went to the spot for measurement, defendants agreed that they would settle the matter with plaintiff and they would not take over possession of plaintiff's land. Plaintiff therefore withdrew his appeal, but defendant filed an application before the Tahsildar, Basavana Bagewadi seeking possession of the encroached area of 11 guntas with a mala fide intention.
4. It is specifically averred that if the court holds that the plaintiff had encroached land in C.B.No.134 of defendants, which has resulted in increase of area of plaintiff's land measuring 02 acres 25 guntas, then such possession of plaintiff being from the year 1976, with the knowledge of the defendants and whole world, plaintiff would become owner of such area by adverse possession. The defendants during the pendency of the suit on the strength of PT Sheet prepared by ADLR, Bijapur, obtained 7 possession of disputed land to the Tahsildar, Basavana Bagewadi, falsely showing the encroachment alleged to have been made by the plaintiff by colluding with Revenue Officials. Thereby, defendants got their extent increased in the records, which are manipulated. Therefore, plaintiff filed a suit seeking aforesaid reliefs.
5. The defendant No.1 in response to the plaint, appeared and filed his written statement denying the plaint averments in toto. It is contended that C.B.No.133, measures 02 acres 25 guntas and plaintiff is the owner of C.B.No.133. That C.B.No.134, measures 01 acre 23 guntas. That consolidation proceedings were initiated in Nagawad Village and other villages of Basavana Bagewadi Taluk, prior to 1958. In those proceedings plaintiff's land was numbered as CRS No.133, which totally measures 02 acres 05 guntas and phot kharab of 30 guntas. In the said consolidation proceedings, the land of defendants was given number as CRS No.134, which totally measures 01 acre 39 guntas, which is evidenced by M.E.No.581, of the 8 said village. That plaintiff in collusion with Revenue Officials got mutated excess area in the records by encroaching over defendants' land. Therefore, the Taluk Surveyor was approached. He measured the land, prepared the PT Sheet and showed that plaintiff had encroached 16 guntas over defendants land. Plaintiff preferred an appeal before the ADLR, Bijapur. Again the land of plaintiff and defendants were measured in presence of plaintiff and defendants and PT sheet was prepared afresh by showing that the plaintiff had encroached 11 guntas on defendants land. Being aggrieved by the same, plaintiff filed an appeal before JDLR, Belgaum and when the said authority went to the spot, plaintiff agreed to hand over possession of encroached area. Therefore, the appeal was dismissed holding that PT sheet prepared by ADLR, Bijapur, is binding on the plaintiff. The plaintiff postponed handing over possession of 11 guntas on one or the other pretext to the defendants. Defendants approached the Tahsildar, Basavana Bagewadi. An enquiry was fixed on 26.12.1997, but the plaintiff suppressed the 9 material facts and on 24.12.1997, he filed a suit before the Vacation Court and obtained an ex-parte order against defendants and later it was vacated. Tahsildar, Basavana Bagewadi, passed an order for handing over possession of suit land on 26.12.1997, which order has remained unchallenged. That plaintiff has not approached the court with clean hands and has also not exhausted the available remedies before filing the suit. That the suit is hit by Section 63 of the Karnataka Land Revenue Act.
6. Defendants further contended that plaintiff is not in possession of 02 acres 25 guntas and it is false to say that defendants' land measures 01 acre 23 guntas and therefore, plaintiff cannot claim adverse possession over 11 guntas of encroached area. That there is no cause of action for the plaintiff to file the suit. Defendants contended that they have already obtained possession of 11 guntas of encroached land through Tahsildar, Basavana Bagewadi, on 19.11.1999 and the said order has remained unchallenged and is binding on the plaintiff. That Writ 10 Petition No.44175/1999, filed by the plaintiff was also dismissed by the High Court on 17.12.2000. That the suit of the plaintiff is hit by mis-joinder of causes of action and therefore the defendants sought for dismissal of suit.
7. On the basis of the aforesaid pleadings, the trial court framed the followings issues and additional issues for its consideration :-
1. Whether the plaintiff proves his title to the suit property bearing RS No.133 to the extent of 2 acres 25 guntas of Nagawad Village ?
2. Whether the plaintiff proves that he is in lawful possession and enjoyment of suit property as on the date of suit ?
3. Whether the plaintiff proves alleged interference caused by the defendants ?
4. Alternatively whether the plaintiff proves that he has perfected his title to the 11 guntas out of CB No.133 by adverse possession with the knowledge of defendants ?
5. Whether the defendants prove that plaintiff has encroached 11 guntas of land in RS No.134 as shown in the PT Sheet ?11
6. Whether the defendants prove that suit of the plaintiff is barred under Section 63 of Karnataka Land Revenue Act ?
7. Whether the plaintiff is entitled to the declaration as prayed for ?
8. Whether the plaintiff is entitled to a perpetual injunction ?
9. To what decree or order ?
Addl. Issues
1. Whether suit of the plaintiff is hit by mis- joinder of causes of action ?
2. Whether court fee paid by the plaintiff is improper ?
3. Whether this court has no pecuniary jurisdiction to try the suit ?
4. Whether suit of the plaintiff is bad for non- joinder of necessary parties ?
5. Whether the plaintiffs are entitled for vacant possession of 11 guntas of land as prayed for ? 12
8. In order to prove his case, son of original plaintiff examined himself as P.W.1. He produced seventeen documents, which were marked as Exs.P.1 to P.17. Defendant No.1 examined himself as D.W.1. He produced eighteen documents, which were marked as Exs.D.1 to D.18.
9. On the basis of the said evidence, the trial court answered Issue Nos.1 to 3 and 6 to 8 partly in the affirmative and Issue No.5, Addl. Issue No.2 in the affirmative and Issue No.4, Addl. Issue No.1, Addl. Issue No.3 and Addl. Issue No.5 in the negative and Addl. Issue No.4 as "does not survive for consideration" and by judgment dated 30.01.2008, trial court decreed the suit in part declaring that the plaintiffs are the owners of land bearing C.B.No.133, measuring 02 acres 01 gunta and phot kharab of 13 guntas of Nagawad Village. Defendants were restrained from interfering with peaceful possession of the suit property. The relief claimed by the plaintiff for 13 title and possession with regard to 11 guntas of land was rejected.
10. Being aggrieved by the rejection of the aforesaid relief, plaintiff preferred R.A.No.4/2008, before the first appellate court, which on hearing the learned counsel for the respective parties, framed the following points for its consideration :-
1. Whether the trial court was justified in declaring the plaintiffs are the owners of the land in C.B.No.133 measuring 2 acre 1 guntas and P.K.13 guntas only ?
2. Whether the impugned judgment and decree passed by the trial court calls for inference from this court ?
3. Whether the plaintiff is entitled for declaration of 2 acres 25 guntas in C.B.No.133 and for consequential relief of injunction to that extent of land ?
4. Whether the plaintiff is entitled for the relief of the possession of 11 guntas of land from the defendants ?
5. What order ?14
The first appellate court answered Point No.1 in the affirmative and Point Nos.2 to 4 in the negative and dismissed the appeal by confirming the judgment and decree of the trial court. Being aggrieved by the judgments of the courts below, the legal representatives of original plaintiff have filed this second appeal.
11. I have heard learned counsel for appellant. He contended that the courts below were not right in declining to grant the relief sought by the plaintiff with regard to C.B.Nos.133 and 134. He contended that the courts below although erroneously held that C.B.No.133, measures two acres 14 Guntas only whereas as per the consolidation proceedings, it measures 02 acres 25 guntas. He further contended that 11 gunta of land was in fact, encroached by the defendants in C.B.No.133, in which event, the total extent of land in the ownership of C.B.No.133, is 2.25 acres and not 2.14 acres, as held by the courts below. In the circumstances, plaintiff sought for possession 11 gunta of land from the defendants, which is in their illegal 15 possession and that the courts below ought to have granted the said relief. That in respect of C.B.No.134, the defendants are in possession of 01 acre 23 guntas and the courts below have held that they are in possession of 01 acre 23 guntas, which is erroneous. He further submitted that the substantial questions of law would arise in this appeal and the same may be admitted for a detailed hearing.
12. Having heard learned counsel for appellants' and on perusal of material on record as well as on original record, it is noted that both sides have admitted that there have been consolidation proceedings initiated in respect of their respective lands. According to the plaintiff, C.B.No.133 comprises of three extents of land measuring 02 acres 25 guntas and that C.B.No.134 does not measure 01 acre 23 guntas. However, the defendants have contended that pursuant to consolidation proceedings, which were initiated prior to the year 1978, the extent of land in C.B.No.133, was only 02 acres 14 guntas. That the 16 plaintiff in collusion with the Revenue Officials, extended the said extent as 02 acres 25 guntas by encroaching 11 guntas belonging to the defendants. Therefore, defendants had to initiate proceedings for taking back possession of 11 guntas of land and ultimately, plaintiff had handed over 11 gunta of land to the defendants. It has been contended by the defendants that on the said surrender, plaintiff filed this vexatious suit, seeking a declaration that C.B.No.133 measures two acres 25 guntas and that defendants be handed over 11 guntas of land in that consolidated block number.
13. The trial court while considering the case of plaintiffs and defendants, has held that the plaintiffs were in illegal possession of 11 guntas of land belonging to defendants and therefore, while initiating the proceedings before the Tahsildar and subsequently, in further proceedings, repeated surveys having been conducted, 11 guntas of land was ordered to be handed over to the defendants by the plaintiff. In fact, that was by order 17 dated 19.10.1999. The Tahsildar's order dated 26.12.1997, is at Ex.D2. Accordingly, as per Ex.D13, possession was taken from the plaintiff and handed over to the defendants. The order of Tahsidlar dated 26.12.1997, was assailed by the original plaintiff in W.P.No.44175/1999, before this court. In that writ petition, this court has held that original plaintiff has suppressed certain facts, dismissed the writ petition with cost of Rs.3,000/-, payable to the third respondent i.e., defendant No.1-respondent No.1 herein.
14. On perusal of the order passed by this court in Writ Petition No.44175/1999, dated 07.12.2000 (Ex.D16), it becomes clear that there were consolidation proceedings initiated with regard to C.B.Nos.133 and 134, which were allotted and further proceedings were initiated by the defendants, seeking possession of land encroached by plaintiff to an extent of 11 guntas and that possession was indeed handed over by order dated 19.11.1999. In fact, under the aforesaid circumstances, the interlocutory 18 injunction granted by the trial court by order dated 05.10.1999, out of which, this second appeal arises, was vacated and appeal filed against that order was also dismissed on 12.09.1999. By suppressing all these facts, Writ Petition No.44175/1999, was filed, which was also dismissed. Further certified copy of judgment passed in Revision Petition No.52/2002, dated 18.10.2004, by the Karnataka Appellate Tribunal, which revision petition was filed by the defendants and which was allowed, would also make it clear that against order dated 07.12.2000, passed by this court in Writ Petition No.44175/1999, Writ Appeal No.510/2011, was preferred by the original plaintiff and that writ appeal was also dismissed by a Division Bench of this court on 04.04.2001, with cost of Rs.3,000/-. It was also recorded in the order of revision petition that defendants in the instant case have been in possession of 11 guntas of land which was handed over to them since 19.11.1999 and they have been personally cultivating the same.
19
15. Thus, both the courts below have concurrently held that although, plaintiff claims that in C.B.No.133, he is in possession of 2.25 acres, but he is in possession of only 2.14 acres. On the other hand, the plaintiff encroached upon 11 guntas of land in C.B.No.134 belonging to the defendants and thus, contended that he was in possession of 2.25 acres in C.B.No.133. The encroached portion of 11 guntas was handed over by the plaintiff to the defendants pursuant to proceedings initiated by the defendants before the respective authorities. The encroached portion of 11 guntas was only defendants' land encroached by plaintiff i.e., in C.B.No.134. In fact, the plaintiff instituted the suit out of which, this second appeal arises on 26.12.1997, which is on the same day, on which, the Tahsildar ordered the plaintiff to hand over 11 guntas of land encroached by him and belonging to the defendants. The said suit was thereafter, renumbered as O.S.No.5/1998. 20
16. In the circumstances, the courts below have declared that the entitlement of plaintiffs in C.B.No.133, is only to an extent of 2.14 guntas and that no declaration of title or any other consequential orders or reliefs could be granted to the plaintiffs. Having regard to the voluminous documents produced by the defendants in the suit by which, it is noted that the controversy which was initiated before various Revenue Authorities, ultimately culminated in favour of defendants before this court, the courts below have declined to grant any relief to the plaintiffs, in so far as the encroached portion of 11 guntas in C.B.No.134, which in any case, belongs to the defendants. I do not find any substantial question of law, which would arise in this second appeal. There is no merit in this appeal. Appeal is dismissed.
Sd/-
JUDGE sn