Karnataka High Court
Rajasab Husseinsab Mulla vs Inayuthullakhan on 26 June, 1990
Equivalent citations: ILR1992KAR1649
JUDGMENT K.A. Swami, J.
1. This Second Appeal is preferred against the Judgment and decree dated 14-2-1978 passed in R.A. No. 166/1973 by the learned Additional Civil Judge, Hubli, partly modifying the Judgment and decree dated 27-10-1973 passed by III Additional Munsiff, Hubli, in O.S. No. 412/1970.
2. This Second Appeal is referred to a Division Bench on the ground that there is a conflict between the two Decisions of this Court in HANUMANTAPPA KALLAPPA v. VEERAPPA BUDRAPPA, 1976(2) KLJ 281 AND PATEL DODDAKEMPEGOWDA v. CHIKKERE GOWDA, .
3. The appellant is the defendant. Respondent is the plaintiff. The suit is filed for a declaration that the plaintiff is the owner of the suit site described as BCE in the rough sketch annexed to the plaint and for possession of the same and also for a mandatory injuction directing the defendant to demolish the temporary structure put up on the suit site with future mesne profits from the date of suit till the date of delivery of possession.
4. It is the case of the respondent-plaintiff that he is the owner of plot No. 12 and the defendant is the owner of plot No. 13 comprised in CTS 3789 of Vidhyanagar, Hubli, that the defendant has encroached upon plot No. 12 belonging to the plaintiff; that the encroached portion is the suit property and it forms part of plot No. 12 and as such he has sought for a declaration of his title to and for possession of the suit site described as BCE in the rough sketch annexed to the plaint.
The defendant in his written statement does not deny that the plaintiff is the owner of Plot No. 12. It may be mentioned that Plot Nos. 12 and 13 adjoin each other. However, it is contended by the defendant that sthe plaintiff is not the owner of the suit site. It is also the case of the defendant that he has become the owner of the suit site by adverse possession.
4.1 On the basis of the pleadings of the parties, the trial Court framed the following issues:
1) Whether the plaintiff proves that the defendant encroached upon the portion marked BEC in the sketch enclosed to the plaint?
2) Whether the suit in the present form is maintainable?
3) Whether the suit is barred by time?
4) Whether the plaintiff is entitled to the declaration as prayed for?
5) Whether the plaintiff is entitled to a mandatory injunction as prayed for?
6) Whether the defendant is entitled to compensatory costs?
7) To what decree or order?
The trial Court answered issue Nos. 1, 2, 4 and 5 in the affirmative and issues 3 and 6 in the negative. Accordingly, the trial Court decreed the suit of the plaintiff in the following terms:-
"In the result, the suit is decreed with costs, declaring that plaintiff is the owner of the suit site described as BCE in the rough sketch annexed to the plaint with a slight modification in the extent i.e. 13 feet instead of 15 feet and the defendant is hereby directed to demolish the temporary structure on the encroached area of 13 feet forthwith. The defendant is further directed to hand over vacant possession of the encroached portion to the plaintiff after demolishing the structure thereon. I further direct that an inquiry be held as to the mesne profits from the date of the suit till the date of delivery of possession under Order 20 Rule 12(c) of C.P.C."
5. Aggrieved by the judgment and decree of the trial Court, the defendant went up in appeal in R.A. No. 166/73. The appeal was heard and decided by the learned Additional Civil Judge. Before the appellate Court, additional evidence was also produced. The lower appellate Court raised the following points for determination:
1) Whether it is necessary to allow the appellant to adduce additional evidence as sought in I.A. II?
2) Whether respondent has established the alleged encroachment on his plot No. 12 C.T.S. No. 3789?
3) Whether the suit as brought is not maintainable?
4) What order?
Points 1 and 2 were answered in the affirmative. On point No. 3, it was held that the suit as brought by the plaintiff was maintainable. Accordingly, the appellate Court confirmed the decree of the trial Court. However, it modified with regard to the mode of execution of the decree as follows:
"Appeal is dismissed with costs. The decree of the trial court is modified as below:
Respondent-plaintiff will get a Commissioner appointed by the executing court, who shall remove the encroachment in excess of 30 feet on the western direction, taking measurement from the southern-most point of the building constructed by the appellant and abutting Municipal Naila and get possession of the said encroached portion through the Court."
6. The points that arise for consideration in ths Appeal are:
i) Whether in the light of the provisions contained in Section 61 of the Karnataka Land Revenue Act, 1964 (hereinafter referred to as the 'Act'), the suit as brought by the plaintiff is maintainable?
ii) If point No. 1 is answered in the affirmative, whether the appeal involves any other substantial question of law?
7. We have already pointed out that the suit is for a declaration of title to an immoveable property and for possession of the same after removing the encroachment. No doubt the suit relates to a portion of the site. According to the plaintiff, the suit property forms part of Plot No. 12. The trial Court as well as the lower appellate Court have held that the suit is maintainable and Section 61(2)(b)(iii) of the Karnataka Land Revenue Act 1964 (hereinafter referred to as the Act) is not a bar as the suit falls under Section 62(b) and (c) of the Act.
8. In Hanumanthappa's case VENKATARAMAIAH, J. as he then was, considered the question as to whether a suit for possession of a site situated in a gramathana and damages for removal of the mud from the suit site was maintainable having regard to the provisions contained in Section 61 of the Act and held that such a suit fell within the provisions contained in Clause (b) of Section 62 of the Act and therefore the jurisdiction of a Civil Court was not taken away. The Judgment being very short one, we re-produce the same:-
"This second appeal arises out of a suit for possession of a site situated in a gramathana and for damages of Rs. 200/- for the removal of mud from that site. The defendants contested the suit. The trial Court dismissed it. One of the grounds on which the suit came to be dismissed by the trial Court was that it was barred under Section 61 of the Karnataka Land Revenue Act, 1964 (hereinafter referred to as the Act). The plaintiff filed an appeal against the decree of the trial Court before the Civil Judge, Hubli in R.A. No. 13/71. The Civil Judge also was of the opinion that the suit was barred under Section 61 the Act and dismissed the appeal without recording his findings on the other issues which arose for consideration in the appeal. Hence this second appeal by the plaintiff.
2. It is not disputed that the suit was for possession of a site and for damages. The Government is not a party to the suit. It is between private parties. The suit is instituted for establishing a private right in respect of the site in question. Section 61 of the Act would not bar a suit coming under any of the Clauses (a), (b) & (c) in Section 62 of the Act. Section 62 states that nothing in Section 61 shall be held to prevent the Civil Courts from entertaining suits between private parties for the purpose of establishing any private right, although it may be affected by any entry in any land record; and suits between private parties for possession of any land being a whole survey number or sub-division of a survey number or a part thereof (vide Clauses (b) and (c) of Section 62 of the Act). The present case falls under Clause (b) of Section 62 of the Act. The Court below was therefore in error in holding that the suit was barred under Section 61 of the Act.
The decree passed by the lower appellate Court is therefore set aside. Issue No. 6 which reads "Whether this Court has jurisdiction to try the suit in view of the provisions of the Mysore Land Revenue act?" is answered in the affirmative and in favour of the plaintiff. The suit is held to be maintainable before the Civil Court. The case is remanded to the lower appellate Court to dispose of the appeal after recording its findings on the other issues.
4. The institution fee paid on the memorandum of appeal shall be refunded to the appellant."
9. In Patel Doddakempegowda's case, the plaintiff sought for possession of 16 guntas of land comprised in Sy. No. 158 of Gollahalli Village, Uyyamballi Hobli, Kanakapura Taluk. The trial Court decreed the suit and the first appellate Court allowed the appeal and dismissed the suit. The issues raised in the suit were as follows:-
"1) Whether the plaintiff proves title to the suit property?
2) Is the plaintiff entitled to possession of suit property?
3) Is the plaintiff entitled to mesne profits? If so, at what rate?
4) Is the suit barred by principles of res judicata?
5) Is the suit barred under Order 11 Rule 2 C.P.C.?
6) Whether the defendants prove that they have perfected title to the suit property by adverse possession?
7) To what reliefs are they entitled."
Thus it is clear from the issues raised, that in that suit also title to immovable proeprty was involved. Nesargi, J; took a view that as the claim of the plaintiff was that a wrong certificate was made by the surveyor as per Exs. D.5 and D.6 and the correctness of the Survey records could not be agitated before a Civil Court, the relief prayed for by the plaintiff could not be granted. Therefore, it was held that the jurisdiction of a Civil Court was barred. Nesargi, J: also relied on Sections 109, 140(1) and 61(e)(ii) of the Act. Section 140 of the Act relates to determination of boundaries of lands forming asurvey number or a holding. Section 49(e) of the Act provides for an appeal. Section 109 of the Act relates to division of survey number into sub-divisions. Sub-section (1) of Section 140 relates to determination of boundaries of lands forming a survey number or a holding. Section 49(e) of the Act provides for an appeal:
"If such an order is passed by a Survey Officer below the rank of an Assistant Superintendent of Land Records or the Assistant Superintendent for Settlement, to the Assistant Superintendent of Land Records or the Assistant Superintendent for Settlement, as the case may be."
Section 61 of the Act provides for exclusive jurisdiction of Revenue Courts and bar of jurisdiction of Civil Courts. Sub-section (1) of Section 61 of the Act provides thus;
"Save as otherwise provided in this Act, or any other law for the time being in force a Revenue Court shall have jurisdiction to determine, decide or dispose of, any matter which it is, by or under this Act empowered to determine, decide or dispose of and no Civil Court shall exercise jurisdiction as to any of such matters."
Thus Sub-section (1) of Section 61 of the Act excludes the jurisdiction of a Civil Court in respect of the matters over which the Revenue Court has jurisdiction as per the provisions of the Act or any other law for the time being in force. Sub-section (2) of Section 61 of the Act enumerates certain matters over which no Civil Court shall exercise jurisdiction. Nesargi, J. has relied upon Section 61(e)(ii) of the Act. At the very outset it may be noticed that Clause (e) of Section 61 relates to claims against the Government. It does not deal with or it is not concerned with dispute between private individuals. Sub-clause (ii) of Section 61(e) is with regard to claims against Government to have any entry made in any record of a Revenue Survey or settlement. Therefore, it does not govern the suits relating to disputes between private parties to which the State Government is not a party. Nesargi, J., after quoting Section 61(e)(ii) has held thus:
"This not only lays down that the exclusive jurisdiction of revenue court but also bars the jurisdiction of Civil courts. The only relevant exception to this is found in Section 62(c) of the Act which reads as follows:
"62(c): Suits between private parties for possession of any land being a whole survey number or Sub-division of a survey number or a part thereof."
But this is not a suit falling within the ambit of this provision. When the Civil Court has no jurisdiction to hold that an entry made in any record of revenue survey or settlement is wrong, it cannot in law, proceed to grant the relief prayed for by the plaintiff because the relief is based on such a finding to be recorded by the Civil Court.
Sri M. Dasappa, learned Advocate appearing on behalf of the appellant argued that Section 61(e) of the act relates to the claim of a person against the Government while in the case on hand the claim of the plaintiff is not against the Government but is against the defendants. Reading of the said provision makes it appear so. But the object behind Section 61 is to provide finality for the acts covered by it and the other provisions of the Act particularly the ones which have been already noted in the preceding paragraphs. It has been left to the exclusive jurisdiction of the revenue court to fix the boundaries and maintain the boundaries of lands or sub-division of lands, to fix the revenue and re-assess the revenue and so on. Civil Courts are not permitted to have a hand in any of these matters. Maintenance of the boundaries of lands and sub-division of lands is exclusively the field of the Revenue Department as is clear from the provisions in Chapter XII of the Act. It is exactly in this Chapter, Section 140 appears. In this connection, Section 140(2) and Section 142 of the Act may be read with advantage. Sub-section (2) of Section 140 empowers the Tahsildar to decide the dispute concerning the boundary of a holding which has not been surveyed or when a dispute arises at any time after the completion of a survey. What is noteworthy in this provision is that the dispute relates to the boundary and not to any encroachment. Section 142(2) clarifies with more lucidity the further power exercisable by the Tahsildar under Section 140(2) of the Act. After the Tahsildar decides the dispute concerning the boundary under Section 140(2) of the Act, he has further the power to summarily evict any land holder who happens to be wrongfully in possession of any land which has been adjudged in the settlement of a boundary."
It is not possible to agree with the aforesaid view of Sri Nesargi, J. When Clause (e) of Section 61 of the Act in clear terms covers only claims against the Government and not the dispute between the private individuals, it is not possible to hold that the object behind Section 61 of the Act is to provide finality. The attention of the Court had not been drawn to the first part of Section 62 and the opening words of Clauses (a), (e) and (g) of Sub-section (2) and the contents of other clauses, of Section 61 of the Act. The Decision in Patel Dodda Kempegowda's case is per incuriam. No doubt Section 61(1) of the Act takes away the jurisdiction of civil Court in respect of the matters which are to be determined, decided or disposed of by the Revenue Courts under the Act. Sub-section (2) of Section 61 also states in specific terms that no civil court shall exercise jurisdiction as to any of the matters specified in Clauses (a) to (h) thereof except to the extent excepted in those clauses. The present suit does not fall under any of the sub-clauses of Sub-section (2) of Section 61 of the Act. The subjects covered by Section 61(2) of the Act are those which, in one form or the other, are against the Government only. But Clauses (a) and (b) of the proviso to Sub-section (2) of Section 61 of the Act carves out certain exceptions and make the claims falling under the proviso cognizable by civil Court. In this case, we are not concerned with the exceptions created by Clauses (a) and (b) of the proviso to Section 61(2) of the Act. Therefore, it is not necessary to deal with the same. Though Section 62 is numbered as an independent Section, it is in effect a proviso to Section 61 of the Act. Section 62 opens with the words "Nothing in Section 61 shall be held to prevent the Civil Courts from entertaining any of the following suits, namely:" Then Clauses (a), (b) and (c) state the suits which are to be entertained by civil Courts. They are as follows:
"62(a): Suits against the State Government to contest the amount claimed or paid under protest, or recovered as land revenue on the ground that such amount is in excess of the amount authorised in that behalf by the State Government or that such amount had previous to such claim, payment or recovery been satisfied in whole or in part or that the plaintiff or the person whom he represents is not the person liable for such amount;
(b): Suits between private parties for the purpose of establishing any private right, although it may be affected by any entry in any land record;
(c): Suits between private parties for possession of any land being a whole survey number or sub-division of a survey number or a part thereof."
One of the reasons given in Patel Doddakempegowda's case is that in order to grant the relief of possession or title, the Court is required to go into the correctness of the land records prepared by the Revenue Authorities and correctness of the same cannot be gone into by the Civil Court. Therefore, the Civil Court has no jurisdiction to decide the suit relating to immovable property for a declaration of title and for possession.
10. Clause (b) of Section 62 of the Act specifically provides that "suits between private parties for the purpose of establishing any private right, although it may be affected by any entry in any land record". The words 'land records' are also defined in the Act. "Land records" mean records maintained under the provisions of or for the purpose of this Act [see Section 2(16) of the Act]. Therefore, the Civil Court has no jurisdiction to entertain a suit regarding immovable property for a declaration of title and possession even though such a relief is founded on the averment that the revenue records pertaining to such property are either illegal or not valid or incorrect. Whenever a jurisdiction is conferred upon a Court, all necessary powers in order to effectively exercise that jurisdiction are also deemed to have been contained in that jurisdiction. Otherwise, the jurisdiction cannot at all be effectively exercised. Clause (b) of Section 62 of the Act specifically provides that whether such a relief is affected by any entry in any land record. Therefore, in the instant case, we need not take the assistance of the principle that all powers which are necessary for the effective exercise of the jurisdiction must be deemed to have been contained in the jursidiction conferred upon the Court to do a certain thing. Hence, we are of the view that the Decision in Patel Doddakempegowda's case does not lay down the law correctly. Therefore, it is over-ruled. We are in agreement with the view expressed in Hanumanthappa Kallappa v. Veerappa Budrappa and Anr. and hold that the suit as brought is maintainable. Hence, Point No. 1 is answered accordingly.
POINT NO.2:
The two Courts below have concurrently held that the defendant has encroached upon Plot No. 12 belonging to the plaintiff. The extent of the encroachment has also been determined. The said finding is a finding of fact, which is based on the evidence on record. Therefore, we do not see any justification to examine the correctness of the same in a Second Appeal under Section 100 of the Code of Civil Procedure. Hence Point No. 2 is answered in the negative.
11. For the reasons stated above, the Appeal fails and the same is dismissed.