Karnataka High Court
Chanabasappa S/O Sangappa vs Leelabai W/O Late Krishnachari And Ors on 7 July, 2022
Author: Rajendra Badamikar
Bench: Rajendra Badamikar
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IN THE HIGH COURT OF KARNATAKA
KALABURAGI BENCH
DATED THIS THE 7TH DAY OF JULY 2022
BEFORE
THE HON'BLE MR.JUSTICE RAJENDRA BADAMIKAR
RSA No.200095/2014
C/W
RSA CROB No.200001/2015
In RSA No.200095/2014
BETWEEN:
CHANABASAPPA S/O SANGAPPA,
AGE: MAJOR, OCC: AGRICULTURE,
R/O NIVLASPUR,
TQ. & DIST. BIDAR-585401.
... APPELLANT
(BY SRI. SHIVAKUMAR KALLOOR, ADVOCATE)
AND:
1. LEELABAI W/O LATE KRISHNACHARI,
AGE: 57 YEARS, OCC: HOUSEHOLD,
2. L.RAJCHARI S/O LATE KRISHNACHARI,
AGE: 34 YEARS, OCC: AGRICULTURE,
3. GANGUBAI D/O LATE KRISHNACHARI,
AGE: 32 YEARS, OCC: HOUSEHOLD,
4. SHAKUNTALABAI D/O LATE KRISHNACHARI,
AGE: 29 YEARS, OCC: HOUSEHOLD,
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5. L.RAGHAVENDRACHARI
S/O LATE KRISHNACHARI,
AGE: 22 YEARS,
OCC: AGRICULTURE,
6. L. ANANTHCHARI
S/O LATE KRISHNACHARI,
AGE: 18 YEARS,
OCC: AGRICULTURE,
ALL ARE R/O H.NO.25-3-319A,
SHAH ALI BANDA, CHARMINAR,
HYDERABAD-500002 (A.P.)
7. THE STATE THROUGH
DEPUTY COMMISSIONER,
BIDAR-585401.
8. THE TAHASILDAR,
BIDAR-585401.
9. THE REVENUE INSPECTOR,
BIDAR (CIRCLE), JANWADA,
DIST. BIDAR-585401.
... RESPONDENTS
(BY SRI. ANANTH SETH, ADVOCATE FOR
SMT. N.GANGABAI, ADVOCATE FOR R2, R4 TO R6)
THIS RSA IS FILED UNDER SECTION 100 OF THE CODE
OF CIVIL PROCEDURE, PRAYING TO ALLOW THE APPEAL BY
SETTING ASIDE THE JUDGMENT AND DECREE DATED
27.08.2009 PASSED IN O.S.NO.442/1989 BY THE PRL. CIVIL
JUDGE (JR.DN.) BIDAR, WHICH IS CONFIRMED IN
R.A.NO.51/2009 VIDE JUDGMENT DATED 20.12.2013 BY THE
ADDL. SENIOR CIVIL JUDGE & CJM, BIDAR AND
CONSEQUENTLY DECREE THE SUIT OF THE APPELLANT.
*******
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In RSA CROB No.200001/2015
BETWEEN:
SMT. LEELABAI SINCE DECEASED BY LRS.
1. L. RAJACHARI S/O LATE KRISHNACHARI,
AGED ABOUT 52 YEARS,
OCC: PUJARI & AGRICULTURE,
2. SHANKUNTALA BAI
D/O LATE KRISHNACHARI,
AGED ABOUT 41 YEARS,
OCC: HOUSEHOLD &
AGRICULTURE,
AGED ABOUT 41 YEARS,
OCC: HOUSEHOLD &
AGRICULTURE,
3. L. RAGHAVENDRACHARI
S/O LATE KRISHNACHARI
AGED ABOUT 36 YEARS,
OCC: PUJARI & AGRICULTURE,
4. L.ANANTACHARI
S/O LATE KRISHNACHARI,
AGED ABOUT 35 YEARS,
OCC: PUJARI & AGRICULTURE,
ALL R/O HOUSE NO.20-6-464/1
SHALI BANDE, HYDERABAD,
TELANGANA STATE.
... CROSS OBJECTORS
(BY SRI. ANANTH SETH, ADVOCATE FOR
SMT. N.GANGABAI, ADVOCATE)
AND:
1. CHANBASAPPA S/O SANGAPPA,
AGED ABOUT 50 YEARS,
OCC: AGRICULTURE,
R/O NAVALASPUR,
TALUK & DIST: BIDAR-585401.
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2. THE STATE THROUGH
DEPUTY COMMISSIONER,
BIDAR-585401.
3. THE TAHSILDAR,
BIDAR-585401.
4. THE REVENUE INSPECTOR,
BIDAR (JANWADA)-585401.
... RESPONDENTS
(BY SRI. SHIVAKUMAR KALLOR, ADVOCATE FOR R1;
BY SMT. MAYA T.R., ADVOCATE FOR R2 TO R4)
THIS RSA-CROB IS FILED UNDER ORDER 41 RULE 22 OF
CODE OF CIVIL PROCEDURE, 1908 PRAYING TO ALLOW THIS
RSA-CROB AND TO SET ASIDE THE FINDING ON ISSUE NO.1
RECORDED IN THE JUDGMENT AND DECREE DATED
27.08.2009 IN O.S.NO.442/1989 ON THE FILE OF THE PRL.
CIVIL JUDGE (JR.DN.) BIDAR, WHICH HAS BEEN CONFIRMED
IN THE JUDGMENT AND DECREE DATED 20.12.2013 IN
R.A.NO.51/2009 ON THE FILE OF THE ADDL. SR. CIVIL JUDGE
& CJM BIDAR, INSOFAR AS FINDING ON ISSUE NO.1 IS
CONCERNED AND TO PASS ANY OTHER APPROPRIATE ORDERS.
THE ABOVE RSA AND RSA-CROB HAVING BEEN HEARD
ON ADMISSION AND RESERVED FOR JUDGMENT ON
27.06.2022, COMING ON FOR 'PRONOUNCEMENT OF
JUDGMENT' THIS DAY, THE COURT DELIVERED THE
FOLLOWING:
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JUDGMENT
Though RSA No.200095/2014 and RSA-CROB No.200001/2015 are listed for admission, with the consent of the learned counsels appearing on both sides, they are taken- up for final disposal.
2. The said RSA is filed under Section 100 and the RSA-CROB is filed under Order 41 Rule 22 of the Civil Procedure Code, 1908 ('CPC' for short) challenging the judgment and decree dated 27.08.2009 passed by the Principal Civil Judge (Jr. Dn.), Bidar, in O.S.No.442/1989 and confirmed by the Additional Senior Civil Judge and CJM at Bidar vide judgment and decree dated 20.12.2013 in RA No.51/2009.
3. For the sake of convenience, parties are referred with the ranks occupied by them before the trial Court
4. The brief factual matrix leading to the case are that, the suit property is a Madmas Inam Land; The defendant Nos. 1 & 2 are the Inamdars; that the father of the plaintiff was the tenant of the suit land and accordingly, the Deputy Commissioner had passed an order granting occupancy rights 6 in favour of the father of the plaintiff and his uncle Ramashetty under Section 8(1) of Hyderabad Inams Abolition Act, 1955; Being aggrieved by the said order, the defendants have preferred an appeal before the Mysore Appellate Tribunal and the matter was remitted back for fresh enquiry; that subsequently, in the absence of the father of the plaintiff, the Deputy Commissioner has granted occupancy rights over the suit property in the name of defendants No. 1 & 2 on 10.07.1972 and on the basis of the said grant of occupancy rights, the Assistant Commissioner has set aside the mutation which was in the name of the father of the plaintiff by order dated 27.01.1984.
5. The plaintiff has also filed revision before Deputy Commissioner and the same was dismissed. When defendant Nos. 1 & 2 were never in possession of the suit land and the father of the plaintiff was in actual possession and enjoyment of the suit land, by taking undue advantage of the order of the Deputy Commissioner, the defendants- 1 & 2 are interfering with the plaintiff's lawful possession over the suit property. The plaintiff has also filed an application for grant of occupancy 7 rights in his favour, before the Land Tribunal, which is pending. Hence, the suit came to be filed by the plaintiff seeking declaration of his possession over the suit land and for permanent injunction.
6. The defendants No.1 & 2 appeared and during the course of the case, defendant No.2 died and no steps were taken against him and hence, the case against defendant No.2 stood abated.
7. Defendant No.1 contested the matter contending that the order of Deputy Commissioner granting occupancy rights in favour of the father of the plaintiff and his uncle was illegal and therefore, the defendants No.1 & 2 have challenged the same and the said order was set aside and occupancy rights were granted in favour of defendants No.1 & 2. It is denied that, it was granted in the absence of the plaintiff and it is contended that the order was passed on merits. It is further asserted that, in pursuance of granting occupancy rights, the names of defendants No.1 & 2 were mutated by the Assistant Commissioner and revision also dismissed.
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8. The defendants have denied the alleged interference and further contended that, there is no cause-of- action to file the suit; that the suit itself is not maintainable; that the suit as against defendant No.2 is already abated; that the plaintiff without seeking declaratory relief, cannot maintain the suit and his application for grant of occupancy rights is still pending. It is also contended that the relief claimed is also hit by the principles of res judicata and sought for dismissal of the suit.
9. On the basis of the said pleadings the trial Court has framed the following seven issues and an additional issue No.8:-
i) Whether plaintiff proves that he is in possession of the suit land?
ii) Whether plaintiff further proves that he is in lawful possession of the suit land?
iii) Whether the plaintiff further proves that he is entitled for declaration of his possession and injunction?9
iv) Whether the suit of the plaintiff is not maintainable without prior notice under Section 80 of CPC to the defendant Nos. 3 to 5?
v) Whether the suit is in time?
vi) Whether the plaintiff is entitled for the relief
sought?
vii) What decree or order?
Additional Issue:
viii) Whether plaintiff proves that this court has
jurisdiction to try this suit in view of tenancy rights of plaintiff over the suit land pending before the Land Tribunal?
10. After considering the oral and documentary evidence, the trial Court has answered Issue Nos. 1 & 5 in the affirmative , while Issue Nos. 2, 4, 6 & 8 were answered in the negative and ultimately dismissed the suit.
11. Being aggrieved by the said judgment and decree of the trial Court, the plaintiff has filed an appeal in RA No.51/2009 on the file of the Additional Senior Civil Judge and CJM at Bidar.
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12. It is important to note here that, Issue no.1 was answered in favour of the plaintiff regarding his possession of suit land. But, it was held to be an unlawful possession. This finding on Issue No.1 was not challenged by defendant No.1 by way of any counter claim.
13. The First Appellate Court vide judgment and decree dated 20.12.2013 dismissed the appeal by confirming the judgment and decree passed by the trial Court.
14. Being aggrieved by the concurrent findings of the courts below, the plaintiff has filed an appeal in RSA No.200095/2014 before this Court. However, defendant No.1 also filed a cross-appeal in RSA CROB No.200001/2015, challenging the findings on Issue No.1 passed by the trial Court, which again confirmed by the First Appellate Court.
15. It is also important to note here that, defendant No.1 did not challenge the said finding before the First Appellate Court, either by Cross-Appeal or Cross-objection under Order 41 Rule 22 of CPC.
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16. Heard the arguments canvassed by the learned counsel for the appellant/plaintiff and the learned counsel for respondent/defendant No.1. Perused the records.
17. Learned counsel for the appellant/plaintiff would contend that the trial Court has come to the conclusion that the plaintiff is in possession of the suit schedule property and the plaintiff's possession is confirmed by the First Appellate Court. Hence, the suit of the plaintiff ought to have been decreed by granting an injunction in his favour. He would also contend that the plaintiff is in settled possession under law and hence, both the courts below have erred in dismissing the suit. He would also contend that, the present RSA CROB is not maintainable since defendant No.1 has not challenged the finding on Issue no.1 before the First Appellate Court and he is directly challenging the same by way of RSA, which has reached finality.
18. Per contra, learned counsel for respondent/defendant No.1 would support the judgment and decree so far as the other issues, except Issue No.1. He would also contend that, admittedly, the property was an Inam 12 Land and the plaintiff has no title, as he cannot acquire title without grant of occupancy rights. He would also contend that the father of the plaintiff was the Inamdar. In fact the plaintiff has moved a successive application before the Land Tribunal, which itself is not maintainable. But, however it is entertained. He would also contend that the matter is ceased before the Land Tribunal and the suit is not maintainable as rightly observed by both the courts below. Hence, he would seek for dismissal of the appeal and allowing his Cross-Appeal, by reversing the finding on Issue No.1.
19. It is evident from the records that the plaintiff has filed a suit for declaration of his possession over the suit land and injunction. The trial Court dismissed the suit holding that the tenancy matter was pending before the Land Tribunal and that cannot be decided by the trial Court. The plaintiff contends that, he is in possession of the suit property for last more than 50 years and he is in settled possession under law. But, it is an admitted fact that the fore-fathers of defendants No.1 & 2 were inamdars. Subsequently, the grant was in favour of the plaintiff's father and when the grant is already in 13 existence, there was no question of moving application by the plaintiff's father and no notice was also issued to the fore- fathers of defendants-1 &2. Hence, the application came to be allowed and the grant was made in the name of defendants-1 &
2. It is also important to note here that, plaintiff is seeking for the relief of declaration of his possession, which is nothing but declaration of his title indirectly, which definitely would lead to adverse impact in respect of pending matter before the Land Tribunal. It is evident from the records that Babuchari, the father of defendant No.1 was the original inamdar, which is evident from Ex.D8 and D8(a) and his sons succeeded to him. Accordingly, it is declared that defendants No.1 & 2 are inamdars and registered as occupants under Section 4(1) of Hyderabad Inam Abolition Act, 1955 vide order dated 10.07.1972 by the Special Deputy Commissioner, which is evident from Exs.D6 and D7. Further, it is also evident that the father of the plaintiff was a party in the said proceedings and as such, the said proceedings are binding on the plaintiff, as the plaintiff is claiming through his father and he is not claiming independently. Further, it is also evident that, plaintiff's father has challenged the said order before the 14 Karnataka Appellate Tribunal at Bengaluru by way of an appeal and that appeal was dismissed, which is evident from Ex.D4. When it has reached finality, the defendant No.1 has also paid premium amount in pursuance of the order of the Deputy Commissioner. Ex.D1 is the Death Certificate of defendant No.2, who died during pendency of the suit and his legal representatives were not brought on record and hence, the claim as against him stood abated.
20. The plaintiff is relying on the copy of Fair-Far Register of Navlaspur Village in respect of the suit land for the year 1962. But, however, it is important to note here that, when the father of defendant No.1 was the original inamdar, how come the father of the plaintiff has also moved application for grant of occupancy rights, is not forthcoming. Further, the father of the plaintiff has lost all the litigations. No doubt the name of the plaintiff is entered in the record of rights, but the plaintiff has failed to prove regarding his title and interestingly, after reaching finality of the proceedings, again he moved application before the Land Tribunal, which was entertained. In fact, the matter has reached finality. However, the application 15 of the plaintiff seeking occupancy rights is still pending before the Land Tribunal and if a declaration regarding possession is granted in the suit, definitely it would have an adverse impact in the pending proceedings.
21. It is also evident from the records that the plaintiff has failed to get grant under the Hyderabad Inam Abolition Act. But, grant was already there in favour of defendants No.1 & 2, which is not at all set aside. Further defendant No.1 has already paid the premium amount and the claim against defendant No.2 is abated. Both the defendants No.1 & 2 are sailing in the same boat and when the plaintiff has not taken any steps against the legal representatives of defendant No.2, the whole suit itself requires to be dismissed. Apart from that, if the plaintiff had filed suit for mere injunction, the things would have been different. But, he is seeking declaration of possession over the suit land, which is indirectly granting title in his favour. Admittedly, the claim of plaintiff regarding grant of occupancy rights before the Tribunal is based on declaration of possession itself and if the Civil Court grants a decree in 16 this regard, that would definitely affect the proceeding before the Tribunal.
22. Learned counsel for the appellant has placed reliance on a decision reported in ILR 1994 KAR 2505 [ B.V. Subbbachari Vs. B.K. Joyappa]. But, the facts and circumstances in the said case are entirely different, as in the said case, only bare injunction restraining the defendants from interfering with the possession of the plaintiff over the suit schedule property was sought. But, in the instant case, the plaintiff is seeking declaration of his possession and hence, the principles enunciated in the above cited decision cannot be made applicable to the facts and circumstances, of the case in hand. Further, the learned counsel has also placed reliance on a decision of this Court reported in 2000 (3) KCCR 1790 [ Meghashyam Bhat Vs. Seetharam Jois], wherein also the suit is filed for bare injunction. But, as observed above, in this case, it is not suit for bare injunction to consider grant of relief.
23. Learned counsel for the appellant/plaintiff has further placed reliance on a decision of the Hon'ble Apex Court 17 in Civil Appeal No. 4448/2021 arising out of SLP (C) No.29868/2018 decided on 05.08.2021 [Saurav Jain and Another Vs. A.B.P. Design and Another] and argued that the Cross-Appeal is not maintainable when under Order 41 Rule 22 of CPC, the defendant No.1 has not challenged the finding against him on Issue No.1, before the First Appellate Court. There is no dispute regarding the proposition of law laid down in the said decision. Admittedly, defendant No.1 has not challenged the finding on Issue No.1 before the First Appellate Court. He did not canvas his claim contesting the claim under Order 41 Rule 22 of CPC, before the First Appellate Court, and for the first time, he is raising this issue in the second appeal, which is not permissible. The provisions of Order 41 Rule 22 of CPC, as observed in the above referred case of Saurav Jain is applicable only in case of First Appeal, but that cannot be directly applicable to the second appeal, when the findings were not challenged in the First Appeal. Hence, the Cross-Appeal is not maintainable.
24. Learned counsel for respondent/defendant No.1 has placed reliance on a decision of the Hon'ble Apex Court in 18 Civil Appeal No.1382/2022 decided on 03.03.2022 [Padhiyar Prahladji Chenaji (Deceased) Through LRs Vs. Maniben Jagmalbhai (Deceased) Through LRs and Others], wherein the Hon'ble Apex Court had an occasion to consider the due process or due course regarding maintainability of the suit and relying on various decisions of the Hon'ble Apex Court, it is held that the suit for declaration and injunction cannot be maintained against a true owner. In the instant case also, admittedly, defendant No.1 has paid the requisite fees before the competent authority after the grant and the Assistant Commissioner on the basis of the order of the Special Deputy Commissioner has mutated the land in the name of defendants No.1 & 2, declaring them to be the Inamdars. Hence, title of the defendants is declared and admittedly the claim of the plaintiff for grant of occupancy rights was rejected and same was confirmed in the appeal.
25. Now again, the plaintiff is claiming the same relief before the Tribunal when the title of defendants No.1 & 2 is already undisputed. Under such circumstances, in view of the decision referred above in the case of Padhiyar Prahladji, the 19 suit seeking permanent injunction against the true owner is not at all maintainable. Hence, the question of granting relief of injunction in favour of the plaintiff on this count does not arise at all as he is claiming injunction against the true owner.
26. Under these circumstances, both the courts below have analysed the oral and documentary evidence in detail and have arrived at a just decision of dismissing the suit. No illegality or infirmity is found in the orders of both the courts below. No substantial question of law is involved in the appeal as well as in RSA-Cross Objection and hence, both the appeal and RSA- Cross Objection are devoid of any merits and require to be dismissed.
Accordingly, both RSA No.200095/2014 and RSA-CROB No.200001/2015 stand dismissed.
SD/-
JUDGE KGR*