Karnataka High Court
President vs Smt Nagarathna on 8 November, 2022
-1-
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 8TH DAY OF NOVEMBER, 2022
BEFORE
THE HON'BLE MRS JUSTICE M G UMA
REGULAR SECOND APPEAL NO. 520 OF 2022
C/W
REGULAR SECOND APPEAL NOS. 521/2022, 522/2022,
524/2022, 525/2022, 526/2022, 527/2022, 528/2022,
530/2022, 531/2022 AND 535/2022 (INJ)
BETWEEN:
1. PRESIDENT
PURUDAL GRAMA PANCHAYTH
SHIVAMOGA
2. THE PANCHAYATH
DEVELOPMENT OFFICER
PURUDAL GRAMA
PANCHAYATH
PURUDAL
SHIVAMOGGA TALUK - 577 205
... COMMON APPELLANTS
(BY SRI. B K MANJUNATH., ADVOCATE)
IN R.S.A. NO.520/2022:
Digitally signed AND:
by NANDINI B
1. SMT. NAGARATHNA,
G
(SINCE DEAD BY LRS)
Location: High B.N. SHIVAPRAKASH
Court Of
S/O H.B. NAGARAJ
Karnataka
AGED ABOUT 36 YEARS
2. H.B. NAGARAJ
S/O LATE ERAPPA
AGED ABOUT 58 YEARS
BOTH AGRICULTURISTS
RESIDENTS OF 'SHIVAGIRI
-2-
NILAYA'
60 FEET ROAD, VINOBANAGAR
SHIVAMOGA CITY - 577 204.
...RESPONDENTS
(BY MR: B.S. PRASAD, ADVOCATE)
THIS R.S.A. IS FILED UNDER SECTION 100 OF CPC, AGAINST
THE JUDGMENT AND DECREE DATED 24.11.2021 PASSED IN
RA.NO.112/2017 ON THE FILE OF THE I ADDITIONAL SENIOR CIVIL
JUDGE AND CJM, SHIVAMOGGA, DISMISSING THE APPEAL AND
CONFIRMING THE JUDGMENT AND DECREE DATED 11.08.2017
PASSED IN O.S.NO.713/2011 ON THE FILE OF THE PRINCIPAL CIVIL
JUDGE AND JMFC., SHIVAMOGGA.
IN R.S.A. NO.521/2022:
AND:
H.B. RAMESH
S/O ERAPPA
AGED ABOUT 52 YEARS
AGRICULTURIST
RESIDENT OF 'SHIVAGIRI NILAYA'
60 FEET ROAD, VINOBANAGARA
SHIVAMOGGA CITY - 577 204.
...RESPONDENT
(BY MR: B.S. PRASAD, ADVOCATE)
THIS R.S.A. IS FILED UNDER SECTION 100 OF CPC AGAINST
THE JUDGMENT AND DECREE DATED 24.11.2021 PASSED IN
RA.NO.110/2017 ON THE FILE OF THE I ADDITIONAL SENIOR CIVIL
JUDGE AND CJM, SHIVAMOGGA, DISMISSING THE APPEAL AND
CONFIRMING THE JUDGMENT AND DECREE DATED 31.07.2017
PASSED IN OS NO.711/2011 ON THE FILE OF THE PRINCIPAL CIVIL
JUDGE AND JMFC, SHIVAMOGGA.
IN R.S.A. NO.522/2022
AND:
SMT. K.G. VIJAYALAKSHMI
D/O K.T. GURAPPA GOWDA
W/O HALAPPA
AGED ABOUT 77 YEARS
RESIDENT OF 'SHREYAS', 100
-3-
FEET ROAD, GANDHINAGARA
SHIVAMOGGA CITY.
...RESPONDENT
(BY MR: B.S. PRASAD, ADVOCATE)
THIS R.S.A. IS FILED UNDER SECTION 100 OF CPC, AGAINST
THE JUDGMENT AND DECREE DATED 24.11.2021 PASSED IN
RA.NO.113/2017 ON THE FILE OF THE I ADDITIONAL SENIOR CIVIL
JDUGE AND CJM, SHIVAMOGGA, DISMISSING THE APPEAL AND
CONFIRMING THE JUDGMENT AND DECREE DATED 11.08.2017
PASSED IN O.S.NO.714/2011 ON THE FILE OF THE PRINCIPAL CIVIL
JDUGE AND JMFC., SHIVAMOGGA.
IN R.S.A. NO.524/2022
AND:
SMT. M.P.Y. INDIRAMMA
W/O LATE M.P. YOGINDRA HEDGE
AGED ABOUT 72 YEARS
AGRICULTURIST
RESIDENT OF ALADEVARA HOSURU
NEAR SRI RAMAPURA
KOTEGANGURU POST
SHIVAMOGGA TALUK - 577 204.
...RESPONDENT
(BY MR: B.S. PRASAD, ADVOCATE)
THIS R.S.A. IS FILED UNDER SECTION 100 OF CPC, AGAINST
THE JUDGMENT AND DECREE DATED 24.11.2021 PASSED IN
RA.NO.116/2017 ON THE FILE OF THE I ADDITIONAL SENIOR CIVIL
JUDGE AND CJM SHIVAMOGGA, DISMISSING THE APPEAL AND
CONFIRMING THE JUDGMENT AND DECREE DATED 11.08.2017
PASSED IN O.S.NO.717/2011 ON THE FILE OF THE PRL. CIVIL
JUDGE AND JMFC., SHIVAMOGGA.
IN R.S.A. NO.525/2022
AND:
B.N. SHIVAPRAKASH
S/O H.B. NAGARAJ
AGED ABOUT 33 YEARS
RESIDENT OF 'SHIVAGIRI NILAYA'
-4-
60 FEET ROAD, VINOBANAGARA
SHIVAMOGGA CITY - 577 204. ...RESPONDENT
(BY MR: B.S. PRASAD, ADVOCATE)
THIS R.S.A. IS FILED UNDER SECTION 100 OF CPC AGAINST
THE JUDGMENT AND DECREE DATED 24.11.2021 PASSED IN
RA.NO.109/2017 ON THE FILE OF THE I ADDITIONAL SENIOR CIVIL
JUDGE AND CJM, SHIVAMOGGA, DISMISSING THE APPEAL AND
CONFIRMING THE JUDGMENT AND DECREE DATED 31.07.2017
PASSED IN OS NO.710/2011 ON THE FILE OF THE PRINCIPAL CIVIL
JUDGE AND JMFC SHIVAMOGGA.
IN R.S.A. NO.526/2022
AND:
A.S. CHANDRAKANTH
S/O SIDDAPPA GOWDA
AGED ABOUT 56 YEARS
AGRICULTURIST
RESIDENT OF MALLIGENAHALLI
SAGAR ROAD
GADIKOPPA POST
SHIVAMOGGA - 577 201.
...RESPONDENT
(BY MR: SIDDANOORU VISHWANATHA, ADVOCATE)
THIS R.S.A. IS FILED UNDER SECTION 100 OF CPC, AGAINST
THE JUDGMENT AND DECREE DATED 24.11.2021 PASSED IN
RA.NO.87/2016 ON THE FILE OF THE I ADDITIONAL SENIOR CIVIL
JUDGE AND CJM, SHIVAMOGGA, DISMISSING THE APPEAL AND
CONFIRMING THE JUDGMENT AND DECREE DATED 01.04.2016
PASSED IN O.S.NO.730/2011 ON THE FILE OF THE I ADDITIONAL
CIVIL JDUGE AND JMFC., SHIVAMOGGA.
IN R.S.A. NO.527/2022
AND:
SMT. D.V. SHAKUNTHALA
D/O VENKATAIAH GOWDA
W/O K.A. SREEKANTHA
AGED ABOUT 69 YEARS
AGRICULTURIST
RESIDENT OF DEVALAKOPPA SADANA
-5-
1ST CROSS, TILAKNAGAR
SHIVAMOGGA CITY - 577 202.
...RESPONDENT
(BY MR: B.S. PRASAD, ADVOCATE)
THIS RSA FILED UNDER SECTION 100 OF CPC AGAINST THE
JUDGMENT AND DECREE DATED 24.11.2021 PASSED IN
RA.NO.115/2017 ON THE FILE OF THE I ADDITIONAL SENIOR CIVIL
JUDGE AND CJM, SHIVAMOGGA, DISMISSING THE APPEAL AND
CONFIRMING THE JUDGMENT AND DECREE DATED 11.08.2017
PASSED IN OS NO.716/2011 ON THE FILE OF THE PRINCIPAL CIVIL
JUDGE AND JMFC SHIVAMOGGA.
IN R.S.A. NO.528/2022
AND:
K.A. HALAPPA
S/O ANNAIAH GOWDA
AGED ABOUT 82 YEARS
R/AT 'SHREYAS' 100 FEET ROAD
GANDHINAGARA
SHIVAMOGGA CITY - 577 201.
...RESPONDENT
(BY MR: B.S. PRASAD, ADVOCATE)
THIS R.S.A. IS FILED UNDER SECTION 100 OF CPC AGAINST
THE JUDGMENT AND DECREE DATED 24.11.2021 PASSED IN
RA.NO.114/2017 ON THE FILE OF THE I ADDITIONAL SENIOR CIVIL
JUDGE AND CJM, SHIVAMOGGA, DISMISSING THE APPEAL AND
CONFIRMING THE JUDGMENT AND DECREE DATED 11.08.2017
PASSED IN OS NO.715/2011 ON THE FILE OF THE PRINCIPAL
SENIOR CIVIL JUDGE AND JMFC, SHIVAMOGGA.
IN R.S.A. NO.530/2022
AND:
SMT. H.M. LEELAMMA
D/O MANJAPPA
W/O CHINNAIAH
AGED ABOUT 67 YEARS
AGRICULTURIST
RESIDENT OF MALLIGENAHALLI
-6-
SAGAR ROAD, GADIKOPPA POST
SHIVAMOGGA - 577 201.
...RESPONDENT
(BY MR: B.S. PRASAD, ADVOCATE)
THIS R.S.A. IS FILED UNDER SECTION 100 OF CPC AGAINST
THE JUDGMENT AND DECREE DATED 24.11.2021 PASSED IN
RA.NO.86/2016 ON THE FILE OF THE I ADDITIONAL SENIOR CIVIL
JUDGE AND CJM, SHIVAMOGGA, DISMISSING THE APPEAL AND
CONFIRMING THE JUDGMENT AND DECREE DATED 01.04.2016
PASSED IN OS NO.729/2011 ON THE FILE OF THE I ADDITIONAL
CIVIL JUDGE AND JMFC SHIVAMOGGA.
IN R.S.A. NO.531/2022
AND:
H.B. NAGARAJ
S/O LATE ERAPPA
(SINCE DEAD BY HIS LR)
B.N. SHIVAPRAKASH
S/O LATE H.B. NAGARAJ
AGED ABOUT 33 YEARS
AGRICULTURIST
RESIDENT OF 'SHIVAGIRI NILAYA'
60 FEET ROAD
VINOBANAGARA
SHIVAMOGGA CITY - 577 202.
...RESPONDENT
(BY MR: B.S. PRASAD, ADVOCATE)
THIS R.S.A. IS FILED UNDER SECTION 100 OF CPC, AGAINST
THE JUDGMENT AND DECREE DATED 24.11.2021 PASSED IN
RA.NO.108/2017 ON THE FILE OF THE I ADDITIONAL SENIOR CIVIL
JUDGE AND CJM SHIVAMOGGA, DISMISSING THE APPEAL AND
CONFIRMING THE JUDGMENT AND DECREE DATED 31.07.2017
PASSED IN O.S.NO.709/2011 ON THE FILE OF THE PRINCIPAL CIVIL
JDUGE AND JMFC., SHIVAMOGGA.
IN R.S.A. NO.535/2022
AND:
SMT. NIVEDITHA
D/O HALAPPA
-7-
W/O LATE G.S. MURALI
AGED ABOUT 46 YEARS
RESIDENT OF 100 FEET ROAD
GANDHINAGAR
SHIVAMOGGA CITY - 577 201.
...RESPONDENT
(BY MR: B.S. PRASAD, ADVOCATE)
THIS R.S.A. IS FILED UNDER SECTION 100 OF CPC AGAINST
THE JUDGMENT AND DECREE DATED 24.11.2021 PASSED IN
RA.NO.85/2016 ON THE FILE OF THE I ADDITIONAL SENIOR CIVIL
JUDGE AND CJM, SHIVAMOGGA, DISMISSING THE APPEAL AND
CONFIRMING THE JUDGMENT AND DECREE DATED 01.04.2016
PASSED IN OS NO.720/2011 ON THE FILE OF THE I ADDITIONAL
CIVIL JUDGE AND JMFC, SHIVAMOGGA.
THESE R.S.AS., COMING ON FOR ADMISSION, THIS DAY, THE
COURT DELIVERED THE FOLLOWING:
COMMON JUDGMENT
Even though these appeals are listed for admission, with
the consent of learned counsel for both the parties, the same is
taken up for final disposal.
2. The defendants have preferred these second
appeals being aggrieved by the judgment and decree dated
11.08.2017 passed in OS No.713 of 2011 (in RSA No.520 of
2022), dated 31.07.2017 passed in OS No.711 of 2011 (in RSA
No.521 of 2022), dated 11.08.2017 passed in OS No.714 of
2011 (in RSA No.522 of 2022), dated 11.08.2017 passed in OS
No.717 of 2011 (in RSA No.524 of 2022), dated 31.07.2017
passed in OS No.710 of 2011 (in RSA No.525 of 2022), dated
-8-
11.08.2017 passed in OS No.716 of 2011 (in RSA No.527 of
2022), dated 11.08.2017 passed in OS No.715 of 2011 (in RSA
No.528 of 2022) and dated 31.07.2017 passed in OS No.709 of
2011 (in RSA No.531 of 2022) on the file of the learned
Principal Civil Judge and JMFC at Shivamogga, and dated
01.04.2016 passed in OS Nos.720, 729 and 730 of 2011 (in
RSA Nos.526, 530 and 535 of 2022) on the file of the learned I
Additional Civil Judge and JMFC at Shivamogga (hereinafter
referred to as 'the Trial Court' for brevity), decreeing the suits
of the plaintiffs partly in OS Nos.713, 711, 710, and 709 of
2011 and decreeing the suit of the plaintiff in rest of the suits
and permanently restraining the defendants and their agents
from interfering with the peaceful possession and enjoyment of
the plaintiffs over the suit schedule property, which was
confirmed vide judgment dated 24.11.2021 passed in RA
No.112 of 2017 (in RSA No.520 of 2022), in RA No.110 of 2017
(in RSA No.521 of 2022), in RA No.113 of 2017 (in RSA No.522
of 2022), in RA No.116 of 2017 (in RSA No.524 of 2022), in RA
No.109 of 2017 (in RSA No.525 of 2022), in RA No.87 of 2016
(in RSA No.526 of 2022), in RA No.115 of 2017 (in RSA No.527
of 2022), in RA No.114 of 2017 (in RSA No.528 of 2022), in RA
No.86 of 2016 (in RSA No.530 of 2022) in RA No.108 of 2017
-9-
(in RSA No.531 of 2022) and in RA No.85 of 2016 (in RSA
No.535 of 2022) on the file of the learned I Additional Senior
Civil Judge and CJM, at Shivamogga (hereinafter referred to as
'the First Appellate Court' for brevity).
3. For the sake of convenience, parties are referred to
as per their status and rank before the Trial Court.
4. Brief facts of the case are that, the plaintiffs in OS
Nos.709, 710, 711 and 713 of 2011 have filed the suits against
defendant Nos.1 and 2 seeking mandatory injunction directing
them to change the khata in the name of plaintiffs and for
permanent injunction restraining them from interfering with the
peaceful possession and enjoyment of the schedule property by
the plaintiffs.
5. It is the contention of the plaintiffs in all the suits
that the plaintiffs are the absolute owners in possession of the
respective schedule properties fully described in the plaint. It
is their contention that the suit schedule properties were
granted vide grant certificates issued by the then Administrator
of Gadikoppa Panchayat and the plaintiffs have purchased the
said property under the registered sale deeds, which are
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marked as Ex.P1. Since the plaintiffs purchased the properties
in question under different registered sale deeds, they became
the absolute owners who are in possession of the same. The
plaintiffs contended that immediately after purchase of the
property, they submitted an application to Purudal Grama
Panchayat as the property is situated within its limits, for
change of khata. But the defendants being the President and
Panchayat Development Officer (for short 'the PDO') of Gram
Panchayat have not changed the khata on the basis of
registered sale deeds, even after furnishing necessary
documents. Therefore, the plaintiffs claimed mandatory
injunction seeking direction to the defendants to effect change
of khata in the name of the plaintiffs. The plaintiffs have also
sought for permanent injunction restraining the defendants
from interfering with their peaceful possession and enjoyment
of the properties concerned.
6. The plaintiffs in OS Nos.714, 715, 716, 717, 720,
729 and 730 of 2011 have filed the suits against defendant
Nos.1 and 2 seeking permanent injunction restraining them
from interfering with the peaceful possession and enjoyment of
the schedule property by the plaintiffs. It is contended that the
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schedule properties were granted in favour of the original
grantee, who in turn sold the same in their favour under the
registered sale deeds. There is a threat by the defendants to
interfere with the same. Therefore, they sought for decree in
their favour.
7. The defendants have appeared before the Trial
Court and filed their written statement denying that the
plaintiffs are the absolute owners in possession of the suit
schedule properties concerned. It is also denied that the
schedule properties were granted in favour of the original
grantee by the then Administrator of Gadikoppa Panchayat. It
is denied that the original grantee sold the properties in
question in favour of different plaintiffs under various registered
sale deeds as contended by the plaintiffs. It is admitted that
the plaintiffs have applied for change of khata in their names,
but denied that the defendants have refused to effect change of
khata.
8. It is contended that without seeking declaration of
their right, the plaintiffs cannot maintain the suits for bare
injunction. The suits are also not maintainable since no prior
notice was issued. The plaintiffs cannot seek mandatory
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injunction to compel the statutory authority to effect change in
khata. The correctness of the description of the schedule
properties are also denied. It is stated that originally
Gadikoppa Panchayat had the jurisdiction and the defendants -
Panchayat was formed in the year 1994-95. The demand
register books pertaining to Gadikoppa Panchayat was handed
over to the defendants. As per the said document, it cannot be
made out that the properties are originally granted in favour of
the grantees.
9. It is also contended that the then Administrator of
Gadikoppa Panchayat had no authority to grant the schedule
properties. Therefore, neither the grantees nor the plaintiffs
could claim any right over the schedule properties. Even
though the defendants collected tax on the basis of records that
are available, it is only for the purpose of getting the revenue.
When an application was received for change of khata, spot
inspection was held and it was found that no sites were formed
as alleged by the plaintiffs and the entire land was still used for
agricultural or horticultural purpose. The defendants contended
that the plaintiffs concocted the documents and are trying to
establish their right and possession over the Grama Thana
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property. Therefore, the defendants - Panchayat resolved to
make appropriate representation to the authorities concerned
for eviction of unauthorized occupants over the public property,
which is belonging to the local authority. The plaintiffs have
suppressed all these material facts and circumstances and have
filed the suits to make wrongful gain. Therefore, the
defendants sought for dismissal of the suits with costs.
10. On the basis of these pleadings, the Trial Court
framed the following issues in all the suits for consideration:
Issues in O.S.No.713/2011:
"1. Whether the plaintiff No.1 proves her
possession over the suit schedule property?
2. Whether the plaintiffs prove the alleged
interference by the defendants over the suit
schedule property ?
3. Whether the plaintiffs are entitled for
the relief as sought for?
4. What order or decree?"
Issues in O.S.Nos.711, 710 and 709/2011:
"1. Whether the plaintiff proves his
possession over the suit schedule property?
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2. Whether the plaintiff proves the alleged
interference by the defendants over the suit
schedule property?
3. Whether the plaintiff is entitled for relief
of permanent injunction and mandatory injunction
as sought for?
4. What order or decree?"
Issues in O.S.Nos.714, 720, 729, 730, 716 and
715/2011:
"1. Whether the plaintiff proves his
possession over the suit schedule property?
2. Whether the plaintiff proves the alleged
interference by the defendants over the suit
schedule property?
3. Whether the plaintiff is entitled for relief
as sought for?
4. What order or decree?"
Issues in O.S.No.717/2011:
"1. Whether the plaintiff proves his
possession over the suit schedule properties?
2. Whether the plaintiff proves the alleged
interference by the defendants over the suit
schedule properties?
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3. Whether the plaintiff is entitled for relief
as sought for?
4. What order or decree?"
11. In OS Nos.713 and 711 of 2011, the plaintiff got
examined PW1 and got marked Exs.P1 to P6 in support of their
contention. The defendants examined DWs.1 to 3 and got
marked Exs.D1 to D7 in support of their defence. In OS
No.710 of 2011, the plaintiff examined PW1 and got marked
Exs.P1 to P7 in support of the contention and the defendants
got examined DWs.1 to 3 and got marked Exs.D1 to D7 in
support of their defence. In OS No.709 of 2011, the plaintiff
examined PWs.1 to 3 and got marked Exs.P1 to P8 in support
of the contention. The defendants got examined DWs.1 to 3
and got marked Exs.D1 to D7 in support of their defence. The
Trial Court after taking into consideration all these materials on
record, answered issue Nos.1 and 2 in the Affirmative and issue
No.3 partly in the Affirmative and partly decreed the suits
granting permanent injunction restraining the defendants from
interfering with the peaceful possession and enjoyment of the
schedule property. However, the claim of the plaintiffs in OS
- 16 -
Nos.709, 710, 711 and 713 for grant of mandatory injunction
was rejected.
12. In OS Nos.714, 716 and 715 of 2011, the plaintiff
got examined PW1 and got marked Exs.P1 to P4 in support of
the contention. The defendants examined DWs.1 to 3 and got
marked Exs.D1 to D7 in support of their defence. In OS
No.717 of 2011, the plaintiff got examined PW1 and got
marked Exs.P1 to P16 in support of the contention. The
defendants examined DWs.1 to 3 and got marked Exs.D1 to D7
in support of their defence. In OS Nos.720, 729 and 730 of
2011, the plaintiff got examined PWs.1 and 2 and got marked
Exs.P1 to P3, Exs.P1 to P5 and Exs.P1 to 4 in OS Nos.720, 729
and 730 of 2011 in support of the contention. The defendants
examined DW1 and got marked Exs.D1 to D13, Exs.D1 to D12
and Exs.D1 to D7 in OS Nos.720, 729 and 730 of 2011 in
support of their defence. The Trial Court after taking into
consideration all these materials on record, answered issue
Nos.1 to 3 in the Affirmative and decreed the suits of the
plaintiffs granting permanent injunction restraining the
defendants from interfering with the peaceful possession and
enjoyment of the schedule property.
- 17 -
13. Being aggrieved by the same, the defendants have
preferred appeals in RA Nos.108, 109, 110, 112, 113, 114, 115
and 116 of 2017 and RA Nos.85, 86 and 87 of 2016. The First
Appellate Court on re-appreciation of the materials on record,
held that the impugned judgment and decree passed by the
Trial Court do not call for any interference and therefore,
dismissed the appeals. Being aggrieved by the same, the
defendants are before this Court.
14. Heard Sri B K Manjunath, learned counsel for the
appellants and Sri Siddanooru Vishwanatha, learned counsel for
the respondents in RSA No.526 of 2022, Sri B S Prasad,
learned counsel for the respondents in other cases. Perused the
materials on record including the Trial Court records.
15. Learned counsel for the appellants contended that
the defendants admit that the then Administrator of Gadikoppa
Panchayat had granted the land in favour of various grantees
by misusing his authority. Such grants were made after lapse
of the term of the elected body. Therefore, when the
defendant - Panchayat came into existence, resolution as per
Ex.D3 was passed. As per the resolution, it was decided to get
- 18 -
the vacant possession of the entire property and to make a
request with PDO/CEO of Zilla Panchayat in that regard. It was
also decided not to effect khata in the name of the grantees or
the purchasers. Even though such a resolution was passed, in
view of the judgment and decree passed by the Trial Court,
which was confirmed by the First Appellate Court granting
permanent injunction, no steps could be taken against the
plaintiffs. Therefore, the defendants are before this Court
seeking to set aside the impugned judgment and decree passed
by the Courts below and to dismiss the suit of the plaintiffs.
Accordingly, he prays for allowing the appeal in the interest of
justice.
16. Per contra, learned counsel for the respondents
opposing the appeals submitted that the defendants have not
taken any action against any of the plaintiffs till today. The
defendants admitted the grant of land in favour of the original
grantees by the then Administrator. They also admit the
possession of the schedule properties by various plaintiffs. No
grounds are made out to interfere with the impugned judgment
and decree passed by the Trial Court, which was confirmed by
the First Appellate Court. There is concurrent findings of fact by
- 19 -
both the Courts, which do not call for interference by this
Court. Hence, they pray for dismissal of appeals with costs.
17. Perused the materials on record in light of the
submissions made by learned counsel for both the parties.
18. The defendants who are the appellants herein have
taken the defence denying the grant of the schedule lands to
the original grantee and thereby denied the right of the
plaintiffs to seek injunction against them. However, Ex.D3 is
the document produced by the defendants, which is the
resolution passed by the defendants - Panchayat way back in
the year 2011. Admittedly, no action is initiated on the basis of
this resolution till date.
19. It is interesting to note that defendant No.2
examined himself as DW1 and re-iterated the defence taken in
the written statement in the affidavit filed in lieu of
examination-in-chief. However, he stated during cross
examination that he is not having personal knowledge, but
deposed on the basis of documents. He pleaded his ignorance
regarding the possession of the schedule properties by the
plaintiffs. Witness also states that till 2011, revenue was
- 20 -
collected by all such persons, but however, since 2011, they
are not collecting any revenue since the resolution was passed
as there was direction by the Hon'ble Apex Court to preserve
the public property. He also admits that Ex.D3 is the resolution
passed against 21 persons. Witness stated that since there is
no document with the defendant-Panchayat about issuance of
grant certificate, he is disputing Ex.P1 the sale deed. Witness
stated that even though the plaintiffs are not in possession of
the schedule properties, by mistake it is stated in Ex.D3 that
they are in possession of the respective properties. Since the
erstwhile Administrator by misusing his authority issued grant
certificate, a decision was taken in the Panchayat to remove
him from service and the same was forwarded to the higher
officers. Witness admits that initially the names of the plaintiffs
were found in the demand register, but however, there is no
basis for the same.
20. One of the member of the defendant - Panchayat
examined himself as DW2 and filed the affidavit in lieu of
examination-in-chief re-iterating the defence taken by the
defendants. During cross examination, witness stated that
during 2011, he was not the member of the defendant -
- 21 -
Panchayat, but his wife Pushpavathi was the member. He also
admits that the said Pushpavathi was the President of the
defendant - Panchayat during 2011. He admits that his wife
will be having more information about the schedule lands.
Witness stated that no enquiry was held about misuse of the
power by Administrator or any other officer.
21. The other member of the Gram Panchayat also filed
similar affidavit in lieu of examination-in-chief and got
examined as DW3. Witness stated that since the Gram
Panchayat had not approved the grant of land in favour of the
grantees, the claim of the plaintiffs is being denied. Witness
stated that the plaintiffs were not notified regarding Ex.D3.
22. Ex.P1 is the copy of grant certificate under which
the grantees are said to have derived title. The plaintiffs have
produced the original sale deeds to claim title over the
properties. They have also produced the encumbrance
certificate and the application submitted to the defendants -
Panchayat to effect change of khata. Few tax paid receipts in
the name of the plaintiffs are also produced.
- 22 -
23. On perusal of all these materials on record, it could
be concluded that even though the defendants have
categorically denied that the plaintiffs are in possession and
enjoyment of the schedule properties, the contention taken by
the defendants that they have passed a resolution as per Ex.D3
to take necessary action in respect of the grant effected by the
Administrator of Gadikoppa Panchayat by misusing his
authority after lapse of term of elected body and collection of
revenue by the grantees itself make it clear that even the
defendants admit the possession and enjoyment of the
schedule properties by the plaintiffs. When the defendants
admit the possession and enjoyment of the plaintiffs in their
own documents i.e., Ex.D3, the defendants cannot find fault
with the impugned judgment and decree passed by the Trial
Court, which was affirmed by the First Appellate Court.
24. It is the specific contention of the learned counsel
for the appellants that fake grant certificates were issued by
the then Administrator of Gadikoppa Panchayat, which lead to
purchase of the schedule properties by the plaintiffs. He also
specifically admits that the plaintiffs are in possession and
enjoyment of the properties. The Trial Court on consideration
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of the materials specifically observed that the plaintiffs are not
entitled for mandatory injunction in OS Nos.709, 710, 711 and
713 of 2011, since the grant itself is under dispute. It also
observed that the defendants have not taken any steps to
cancel the grant certificates or to get possession of the
properties. The said judgment was passed by the Trial Court
way back in 2017. Till today, no steps were taken by the
defendants either to cancel the grant certificates or to get
possession of the lands in question.
25. To a pointed query, learned counsel for the
appellants could not explain as to why the defendants are
challenging the impugned judgment and decree granting only
the permanent injunction to protect the possession of the
plaintiffs till they are evicted in accordance with law. However,
he admits that since the defendants admitted the possession of
the plaintiffs, they are entitled to be in possession of the
schedule properties till the possession of the properties were
taken by the defendants with recourse to law. Under such
circumstances, there is absolutely no reason as to why
defendants have preferred regular appeals before the First
Appellate Court and why they are before this Court.
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26. From the materials that are placed before the Court
and in view of the discussions held above, prima facie, I am of
the opinion that the defendant being the Gram Panchayat,
represented by its President and PDO, are challenging the
impugned judgment and decree before various Courts by
spending public money, without being any reason for the same.
They are not interested in taking any action against the
Administrator, who is said to have granted the lands in favour
of the grantees by misusing his authority. They are also not
interested in giving effect to their own resolution passed in the
year 2011 as per Ex.D3. Even after expiry of morethan 11
years, no steps whatsoever was taken towards preserving the
public land which they are claiming. It seems the appeals
preferred by the defendants is only an eye wash to project to
the general public that they are fighting the litigation to protect
the precious land, which according to them belongs to the
Panchayat. No earnest efforts are made to protect or preserve
the properties in question. However, they are satisfied in
preferring the appeals after appeals without any specific reason
and thereby wasted not only the public money, but the precious
time of the Court. It is a classic example as to how the
executives who are the custodians to protect the
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public/government lands by spending public money only to
project that they are working for the welfare of the general
public, but in fact, doing nothing to protect it from the clutches
of scrupulous land grabbers for the reasons best known to
them. They are also providing good grounds for such land
grabbers to protect their possession and to create title over the
same. Otherwise, there is no reason as to why the resolution
and the defence taken by the defendants was not acted upon
till today and are fighting the litigation without any valid
ground. Therefore, I am of the opinion that the appeals are
liable to be dismissed with exemplary costs i.e., to be borne by
the President and PDO of the Panchayat personally, who
preferred the appeals.
27. At this stage, learned counsel for the appellants
submitted that liberty may be reserved in favour of the
defendants to take necessary action to get properties restored
in favour of Panchayat. But he is at loss to explain as to why
such liberty is necessary and what is the impediment for not
taking any such steps, when admittedly, the Trial Court had
commented about the in-action on the part of the defendants.
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Moreover, there is no restriction imposed on the defendants to
take recourse to law.
28. Hence, the submission of the learned counsel for
the appellants is rejected and I proceed to pass the following:
ORDER
(i) The appeals are dismissed with exemplary costs.
(ii) The judgment and decree dated 11.08.2017 and 31.07.2017 passed in OS Nos.709, 710, 711, 713, 714, 715, 716 and 717 of 2011 on the file of the learned Principal Civil Judge and JMFC at Shivamogga and dated 01.04.2016 passed in OS Nos.720, 729 and 730 of 2011 on the file of the learned I Additional Civil Judge and JMFC at Shivamogga, which was confirmed vide judgment dated 24.11.2021 passed in RA Nos.108, 109, 110, 112, 113, 114, 115 and 116 of 2017 and RA Nos.85, 86 and 87 of 2016 on the file of the learned I Additional Senior Civil Judge and CJM, at Shivamogga, are hereby confirmed.
(iii) Looking to the conduct of the defendants and in view of the observations made above in the body of the judgment, the President and PDO who are responsible for preferring the regular appeals and the present appeals by
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spending the public money, are liable to pay cost of Rs.25,000/- each in each of the suits to be deposited with the Karnataka State Legal Services Committee, within a period of three months from the date of receipt of the certified copy of this judgment. Failing which, the Member Secretary of the Karnataka State Legal Services Committee, shall initiate action for non compliance of the order passed by this Court.
Registry is directed to send back the Trial Court records along with copy of this judgment and also to serve copies of the judgment on the appellants forthwith, for information and for needful action.
Sd/-
JUDGE *bgn/-