Karnataka High Court
Mariyappa Since Decd By His Lrs vs Nadikerrappa on 10 January, 2014
Author: B.S.Patil
Bench: B.S.Patil
RFA 1134/2003
1
IN THE HIGH COURT OF KARNATAKA AT BANGALORE
DATED THIS THE 10TH DAY OF JANUARY, 2014
BEFORE
THE HON'BLE MR.JUSTICE B.S.PATIL
R.F.A.No.1134/2003
BETWEEN:
MARIYAPPA SINCE DECD BY HIS LRS
SMT PILLAMMA W/O LATE MARIYAPPA
SINCE DECD BY L.RS
1. JANARDHAN S/O LATE MARIYAPPA
MAJOR,
2. CHANDRASEKAR S/O LATE MARIYAPPA
MAJOR,
3. SAMPATH KUMAR S/O LATE MARIYAPPA
MAJOR
4. SMT JYOTHI W/O LATE RAJANNA
MAJOR,
ALL R/A KAMAKSHI PALYA
BASAVESHWARANAGAR, BANGALORE-79
ALL ARE REP BY GPA HOLDER C KALEGOWDA,
S/O LATE CHANNIGAPPA R/O KAMAKSHIPALYA
MAJOR, R/O KAMAKSHIPALYA MAIN ROAD,
KEMPEGOWDA NARASARAO KALYAN MANTAP,
KAMAKSHIPALYA, BASAVESHWARANAGAR,
BANGALORE -79. ..APPELLANTS
(By SRI R.A.DEVANAND, ADV.)
AND:
NADIKERRAPPA
SINCE DECED BY L.RS.
1. SMT.NARASAMMA
W/O LATE NADIKERRAPPA
RFA 1134/2003
2
AGED ABOUT 77 YEARS
NO.1161, SYNDICATE BANK COLONY LAYOUT
HEROHALLI, VISHWANEEDAM POST
MAGADI MAIN ROAD,
BANGALORE-91.
2. SRI N.RAMACHANDRAIAH
S/O LATE NADIKERRAPPA
AGED ABOUT 57 YEARS
R/AT MIG 79/9, 6TH CROSS
KHB COLONY, BASAVESHWARANAGAR
BANGALORE-79.
3. SMT.JAYALAKSHAMMA
W/O LATE RAMAKRISHNAPPA
AGED ABOUT 54 YEARS
NO.1161, SYNDICATE BANK COLONY LAYOUT
HEROHALLI, VISHWANEEDAM POST
MAGADI MAIN ROAD,
BANGALORE-91.
4. SMT.JAYALAKSHAMMA
D/O NADIKERRAPPA
AGED ABOUT 40 YEARS
R/AT SUNKADAKATTE
SALLAPURADAMMA TEMPLE ROAD
VISWANEEDAM POST
BANGALORE-91.
5. SRI GOPAL
AGED ABOUT 48 YEARS
S/O LATE NADIKERRAPPA
R/AT SUNKADAKATTE
SALLAPURADAMMA TEMPLE ROAD
VISWANEEDAM POST
BANGALORE-91.
6. SMT.DHANALAKSHMI
AGED ABOUT 43 YEARS
D/O LATE NADIKERRAPPA
7. SMT.ANUSUYA
AGED ABOUT 40 YEARS
D/O LATE NADIKERRAPPA
RFA 1134/2003
3
8. SMT.KRISHNAVENI
AGED ABOUT 38 YEARS
D/O LATE NADIKERRAPPA
9. SRI SHASHIKUMAR
AGED ABOUT 36 YEARS
S/O LATE NADIKERRAPPA
SL.NO.6-9 ARE R/AT BEL ROAD
VISHWANEEDAM POST
MAGADI MAIN ROAD,
BANGALORE-91. ..RESPONDENTS
(By SRI K.SUMAN, ADV.)
THIS RFA IS FILED U/S 96 R/W O XLI OF CPC AGAINST THE
JUDGMENT AND DECREE DT. 31.5.2003 PASSED IN OS
NO.7459/1991 ON THE FILE OF THE VII ADDL.CITY CIVIL JUDGE,
BANGALORE, (CCH.NO.19), DECREEING THE SUIT FOR
PERMANENT INJUNCTION.
This appeal having been heard and reserved for judgment
on 17.12.2013, coming on for 'Pronouncement of Judgment',
this day, the Court delivered the following:
JUDGMENT
1. This Regular First Appeal is filed by the defendants in O.S.No.7459/1991 aggrieved by the judgment and decree dated 31.05.2003 passed by the learned VII Addl. City Civil Judge, Bangalore City, thereby decreeing the suit filed by the plaintiff- respondents herein.
2. O.S.No.7459/1991 was instituted seeking the relief of permanent injunction restraining the defendant - late Mariyappa, whose legal representatives/appellants 1 to 4 herein were later on brought on record, from interfering with the RFA 1134/2003 4 plaintiff's (Nadikerrappa) peaceful possession and enjoyment of the suit schedule property. The suit schedule property is described as 1 acre 14 guntas of land comprised in Sy. No.1/11 of Srigandadakaval Village, Sunkadakatte, Yeshwanthapura Hobli, Bangalore North Taluk.
3. The case of the plaintiff was that he was put in possession of the suit schedule property along with other lands under two registered Guthige Adara Pathra dated 29.04.1955 and 23.05.1956 and that the Land Tribunal conferred occupancy rights in favour of the plaintiff in case No.LRF 1359/74 and No.226/74. The defendant filed W.P.No.12461/1984 challenging the order of the Land Tribunal. The matter was transferred to the Land Reforms Appellate Authority in view of the amendment brought to the provisions of the Land Reforms Act. The appeal was numbered as LRA.No.179/1986. The same was dismissed for default on 27.02.1989. Hence, the defendant had no right, title or interest whatsoever over the land in question.
4. The plaintiff asserted that he was cultivating the schedule land and had grown Neelgiri trees in the same. He claimed that RTC in respect of the schedule land stood in his name from RFA 1134/2003 5 1986-87 onwards and that he had paid taxes to the Saneguruvanahalli Village Panchayath. He alleged that the defendant tried to enter into the land on 05.12.1991 and put up some unauthorized construction which was resisted. The defendant and his sons were powerful and influential persons supported by local henchmen and goonda elements. Whereas, the plaintiff being an agriculturist eking out his livelihood from agriculture and being a law abiding citizen, could not continue to resist the illegal activities of the defendants by using force. The local police did not render any immediate assistance. Hence, he was constrained to file the suit for permanent injunction.
5. Late Mariyappa - father of the defendants/appellants herein, who was the original defendant, filed his written statement denying the plaint averments. He contended that by the order dated 30.04.1982 in case Nos.LRF 1359/74 and 226/74, the Land Tribunal, Bangalore North Taluk, conferred occupancy rights on the plaintiff in respect of 25 guntas of land in Sy. No.1/11 out of the total extent of 1 acre 14 guntas. A certificate was issued to him in that regard as a tenant on 08.09.1982. Suppressing the same, the plaintiff had laid false RFA 1134/2003 6 claim claiming that occupancy rights had been granted in respect of the total extent of land. The assertion of the plaintiff that he was cultivating the schedule land by growing Neelgiri trees and that pahanis of the land stood in the name of the plaintiff was denied as false. Payment of taxes by the plaintiff was also denied.
6. The defendant urged that the plaintiff had filed two applications in Form No.7 before the Land Tribunal, one on 30.10.1974 and the other on 03.12.1974, claiming occupancy rights in respect of the suit schedule property. In the first application, the name of the landlord was not disclosed and in the second application the name of one Ramakrishnaswamy S/o Byrappa of Sunkadakatte, Yeshwanthpur Hobli, Bangalore North Taluk, was mentioned. Both the applications were given different numbers. By order dated 30.04.1982, the Land Tribunal conferred occupancy rights in respect of 25 guntas of land in Sy.No.1/11 in favour of the plaintiff out of the total extent of 1 acre 14 guntas. The plaintiff was not in possession of the total extent of 1 acre 14 guntas of land. He was put in possession of only 25 guntas. He had made false assertions and had suppressed true facts which disentitled him from seeking RFA 1134/2003 7 the equitable relief of permanent injunction. The defendant further asserted that the plaintiff had constructed a house unauthorizedly and illegally on the land.
7. Additional written statement was filed by the GPA holder one Kalegowda on 19.08.2002 on behalf of the legal representatives of deceased defendant Mariyappa. They contended that the plaintiff was never in cultivation of the property. Even if the alleged Guthige Adara Pathra dated 29.04.1955 and 23.05.1956 of the plaintiff with one Sharabaradhya existed, the term of the Guthige Kararu had expired in May 1961. Therefore, the plaintiff cannot be regarded as a person in possession of the land after 1961. It was further urged that late Mariyappa acquired the property in question under the sale deed dated 30.08.1954. Eversince the said date, Mariyappa was in possession and enjoyment of the said land till his death in the year 1993. His legal heirs were not aware of the proceedings before the Tribunal until they were made parties in the present suit O.S.7459/1991. Thereafter, on inquiry they learnt about the grant of occupancy rights by the Tribunal in favour of the plaintiff.
RFA 1134/20038
8. In paragraph 7 of the additional written statement, the Legal Representatives of the defendant contended that the plaintiff had accepted the grant of occupancy rights to the extent of 25 guntas in Sy.No.1/11 and to the said extent, he became the occupant and was in possession and enjoyment of the property. But, the remaining extent of 29 guntas continued with late Mariyappa who was in possession and enjoyment of the same. It is, however, further asserted in the said paragraph that on the date of filing of the suit, late Maryappa was in possession of the entire extent of 1 acre 14 guntas of land in Sy. No.1/11 till the Land Tribunal granted occupancy rights in favour of plaintiff to the extent of 25 guntas. After the order dated 30.04.1982, late Mariyappa continued to be in possession of the remaining extent of land of 29 guntas as owner. They also asserted that it was Mariyappa who planted the Neelgiri trees and that there was no construction or building on the disputed land as on the date of filing of the suit or as on the date of filing of the written statement. It was also urged that the appeal filed by Mariyappa before the Land Reforms Appellate Authority was not dismissed on merits and that the entries in the revenue records mentioning the extent of land as 1 acre 14 guntas in the name of the plaintiff were entered RFA 1134/2003 9 without any authority. Further, they alleged that the encumbrance certificate pertaining to the land disclosed the name of Mariyappa from 1954 and a portion measuring 210' X 50' disclosed the name of Gayathri, w/o Ramakrishna, Mahalakshmi Layout, Bangalore, who got the property under GPA executed by late Mariyappa in 1992. That M.Ramakrishna
- husband of Gayathri had lodged a complaint with the Kamakshipalya Police Station alleging that somebody had stolen the stone slabs embedded to the ground as compound and requested the police to investigate the crime.
9. Based on the pleadings, the following issues were framed by the Trial Court.
(1) Whether the plaintiff proves his possession over suit schedule property on the date of suit? (2) Whether plaintiff is entitled for the relief of injunction?
(3) What decree or order?
10. On behalf of the plaintiff, one Ramachandraiah, son of the plaintiff was examined as PW-1 by producing the Special Power of Attorney executed by his father. Exs.P-1 to P-23 were produced and marked. Defendants examined one Kallegowda - RFA 1134/2003 10 the General Power of Attorney Holder of the defendants, as DW- 1 and another witness by name Kempanna S/o Kempalakkaiah as DW-2 and produced and marked Exs.D-1 to D-20.
11. The Trial Court, on appreciation of oral and documentary evidence, found that the plaintiff proved his actual possession over the suit schedule property as on the date of suit and that he was entitled for the relief of injunction. Accordingly, the suit has been decreed. Assailing these findings and the decree passed, the present appeal is filed.
12. Mr. Devanand, learned Counsel for the appellants contends that in paragraph 2 of the plaint, the plaintiff has asserted his absolute title over the suit schedule property measuring 1 acre 14 guntas, which is totally false, in as much as, his claim over the property is rested on the order passed by the Land Tribunal granting occupancy rights in respect of 25 guntas of land in Sy.No.1/11 and therefore, such person who has come up before the Court with false averments is not entitled for the equitable relief of injunction. He has further contended, by taking the Court through the order passed by the Land Tribunal that occupancy rights have been conferred in favour of the plaintiff only in respect of 25 guntas and not in RFA 1134/2003 11 respect of the remaining 29 guntas. Therefore, the alleged possession of 29 guntas has not been established by the plaintiff and the plaintiff was guilty of suppression of facts in this regard. He brings to the notice of the court, the order passed by this Court in W.P.No.27230/2002 c/w W.P.No.23034/2002 disposed of on 25.07.2007, to contend that only on the ground of delay the writ petition filed by the defendant - Mariyappa was dismissed by this Court while holding that the Land Tribunal had passed the order behind the back of Mariyappa and that it was Mariyappa who was the lawful owner of the property.
13. He has further contended that unless the plaintiff showed his lawful possession over the property, he is not entitled for a decree of permanent injunction. He has relied on the decision of the Apex Court in the case of ANATHULA SUDHAKAR VS T.BUCHI REDDY (DEAD) BY LRS & OTHERS - (2008)4 SCC 594, to contend that where a cloud is raised over the plaintiff's title and he does not have possession, a suit for declaration and possession, with or without a consequential injunction, is a remedy; where the plaintiff's title is not in dispute or under cloud, but he is out of possession, he has to sue for possession RFA 1134/2003 12 with a consequential injunction. Where there is merely an interference with the plaintiff's lawful possession or there is threat of dispossession, it is sufficient to sue for an injunction simplicitor. Mr. Devanand has also invited the attention of the court to the observations made in the said judgment to the effect that in a suit for injunction simplicitor, the court would be concerned only with possession and normally the issue of title will not be directly and substantially in issue and the relief would be decided based on the finding regarding possession. But, in cases where de jure possession has to be establioshed on the basis of the title to the property, as in the case of vacant site, the issue of title may directly or substantially arise for consideration, as without a finding thereon, it will not be possible to decide the issue of possession. He has, therefore, contended that as the plaintiff has failed to establish his title and/or his lawful possession over the property, the judgment and decree passed by the Trial Court are not sustainable.
14. Mr. K.Suman, learned Counsel appearing for the respondents contends that plaintiff was the tenant of the entire extent of land. His name was entered in Col. No.12 of the RTC pertaining to the land for the entire extent with effect from RFA 1134/2003 13 1966-67. The revenue records have been marked in the evidence of the plaintiff. From 1986-87 onwards, the name of the plaintiff has been shown in both Col. Nos.9 & 12. Though the mutation entry was challenged before the revenue authorities, in the writ petition filed before this Court in W.P.No.20187/2002, this Court by order dated 01.07.2002, found that though the original defendant - Mariyappa had purchased the property on 28.08.1954, there was a sale deed executed in favour of one Sharabaradhya on 12.07.1954 which was registered only on 21.10.1954, but, during the interregnum, the original owner Venkatappa had sold the property in favour of Mariyappa and on 24.09.1964, a relinquishment deed came to be executed whereunder Sharabaradhya gave up his right in the property in favour of Mariyappa and that Mariyappa's name found place in the revenue records only in the year 1962 though there was no mutation effected in his favour. However, the name of Nadikerrappa (plaintiff herein) was entered in the revenue records from the year 1966-67 till the year 1992 and even after the order passed in the year 1982 by the Land Tribunal, the name of plaintiff was entered in the RTC to the full extent of 1 acre 14 guntas till 1992.
RFA 1134/200314
15. Ex.P-22 refers to the entries made in favour of Nadikerrappa in respect of entire extent of land in 1 acre 14 guntas from 1966-67 onwards. However, for the period from 1989-90 Mariyappa was shown to be in occupation of 29 guntas. This entry was not preceded by any mutation order in his favour. Nadikerrappa - the plaintiff herein was not heard before deleting his name in respect of 29 guntas. Therefore, it was clear from the same that there was no inquiry for deleting the name of Nadikerrappa or for entering the name of Mariyappa for 29 guntas of land in terms of Section 129 of the Karnataka Land Revenue Act, 1964. Therefore, this Court found in the above mentioned writ petition that the findings recorded by the Deputy Commissioner that once Nadikerrappa - plaintiff herein was registered as occupant only in respect of 25 guntas, the remaining extent of 29 guntas shall automatically vest with the landlord was not correct. This Court has further observed that if the entire extent of 1 acre 14 guntas of land was tenanted land and only 25 guntas of land was granted to Nadikerrappa, the remaining extent had to vest with the Government and not with Nadikerrappa. This Court, however, RFA 1134/2003 15 hastened to add that such a finding was required to be recorded by the Land Tribunal and not by the Deputy Commissioner.
16. In this background, having referred to the pendency of the proceedings before the Land Tribunal for rectification of the error which according to the plaintiff, had crept in while passing the order before the Tribunal and also after referring to the pendency of this suit before the Trial Court wherein Temporary Injunction had been granted in favour of the plaintiff, the writ petition was disposed of holding that question whether the petitioner Nadikerrappa was entitled to the entire extent of 1 acre 14 guntas insptie of the order dated 30.04.1982 passed by the Land Tribunal and whether his application for correction was maintainable were matters to be decided by the Land Tribunal. Similarly, whether the petitioner was in possession of 1 acre 14 guntas of land or was indeed in possession of only 25 guntas was held to be a matter to be decided by the Trial Court in the pending suit (O.S.7459/1991). The entries in the name of the plaintiff were left undisturbed with a direction that the revenue authorities shall make appropriate entries in the mutation register only after the decision by the Tribunal regarding the entitlement of the RFA 1134/2003 16 petitioner - Nadikerrappa to the entire extent of land and also the decree to be passed by the Civil Court where the suit is pending.
17. It is thus evident from the order passed by this Court that the entries recorded in the name of the plaintiff were allowed to be continued by setting aside the orders passed by the revenue authorities who had ordered for entering the name of late Mariyappa in the revenue records for 29 guntas of land by deleting the name of the plaintiff - Nadikerrappa. Respondent, therefore, contends that these revenue entries which disclosed the name of the plaintiff have presumptive value under the provisions of the Karnataka Land Revenue Act, 1964, and as they disclosed the actual possession and enjoyment of the property by the plaintiff right from 1966 onwards the judgment of the Trial Court is legal and justified. He also contends that the order passed by the Land Tribunal contains a clerical error in granting only 25 guntas and the same is sought to be rectified by moving the Land Tribunal for amendment of the extent of land shown in the order. He takes me through the proceedings sheet of the Land Tribunal maintained in this regard. He also points out that the order dated 25.7.2007 RFA 1134/2003 17 passed in W.P.No.27230/2002 c/w 23034/2002 is challenged in W.A.Nos.1563/2007 c/w 1950/2007, which are pending consideration before this Court. It is urged by him that the plaintiff has proved his settled possession over the property by producing the relevant records and is therefore, entitled for protection of his possession.
18. Mr. Suman has further contended that the defendant have not chosen to examine themselves. They have adduced the evidence of one Power of Attorney holder by producing the General Power of Attorney as Ex.D-20. The General Power of Attorney refers to only 29 guntas of land. Therefore, he could not have spoken to the entire extent of the land comprised in the suit schedule Sy. No.1/11. He also did not have any knowledge as to how this 29 guntas of land came to the defendant and when the phodi was done effecting division of the property. He has placed reliance on the decisions in the case of RAME GOWDA (D) BY LRS. VS M.VARADAPPA NAIDU (D) BY LRS. & ANOTHER - ILR 2006 KAR 1047 and JANKI VASHDEO BHOJWANI & ANOTHER VS INDUSIND BANK LIMITED & OTHERS
- 2005(1) KCCR 227, to contend that the Power of Attorney holder cannot depose in respect of the matter which were in the RFA 1134/2003 18 personal knowledge of the Principal. He has also placed reliance on the judgments in the case of B.V.SUBBACHARI VS B.K.JOYAPPA - ILR 1994 KAR 2505, to contend that the Civil Court has jurisdiction to examine the actual possession of the land even where the land is a tenanted land and the tenant himself seeks such relief.
19. In the light of the above, the points that arise for consideration in this appeal are,
(i) Whether the plaintiff has established his lawful possession over the suit schedule property and the alleged interference by the defendant?
(ii) Whether the appellant proves that the judgment and decree passed by the Trial Court suffers from any illegality or perversity warranting interference in this appeal?
(iii) What judgment/order?
20. Point Nos.1 to 3:- All these points overlap and are interlinked and therefore they are taken up together.
21. Exs.P-2 & P-3 are Guttige Karaar Patras. Plaintiff claims that as per the registered lease deeds, he continued as lessee in RFA 1134/2003 19 the property under one Sharabaradhya. Ex.P-2 is the lease deed dated 29.04.1955. Plaintiff - Nadikerrappa along with one Ramanna were put in possession of several lands including the suit land. The recitals in this lease deed discloses that plaintiff
- Nadikerrappa was the tenant of these lands under its previous owner Venkatappa and that Sharabaradhya being the subsequent purchaser, has continued the tenancy of the plaintiff. In fact, this recital in Ex.P-2 is referred to by the Trial Court in paragraph 14 of its judgment. Ex.P-3 is another lease deed dated 23.05.1956 between the plaintiff - Nadikerrappa along with the said Ramanna on the one hand as tenants and Sharabaradhya on the other hand as owner. The tenancy of the plaintiff is continued as per these registered lease deeds.
22. Exs.P-5 to P-14 are the record of rights pertaining to the suit land. Ex.P-5 is for the year 1966-67 to 1970-71. In the column pertaining to 'actual cultivator' i.e., Col. No.12, the name of Nadikerrappa is shown for 1 acre 14 guntas. Similarly, Ex.P-6 is the record of rights for the years 1977-78 to 1981-82, wherein also Nadikerrappa's name is shown as actual cultivator for the suit land. However, for the period from 1982-83 to 1985- 86, in the RTC extract which is marked as Ex.P-7, nobody's RFA 1134/2003 20 name is shown. Col. No.12 is blank. But, for the year 1986-87, Nadikerrappa's name is shown in Col. Nos.9 & 12. Similarly, in the RTCs for the years 1987-88 to 1991-92 as per Ex.P-8, both in Col. Nos.9 & 12, the name of the plaintiff - Nadikerrappa has been shown. Likewise, for the subsequent period as per Exs.P-9 to P-14, plaintiff's name is found both in Col. Nos.9 & 12 in respect of the entire extent of 1 acre 14 guntas.
23. Thus, it is clear from the registered lease deeds and the entries in the revenue records that plaintiff - Nadikerrappa was in possession of the property by virtue of the lease deeds executed. In fact, the registered lease deed of the year 1955 as per Ex.P-2 makes reference to the possession of Nadikerrappa as tenant under the original owner Venktappa. He has continued in possession of the property cultivating the land as tenant as is evident from the revenue records.
24. In Form-7 filed by Nadikerrappa, he has claimed occupancy rights in respect of the entire land. This is evident from Exs.D-2 & D-3 - applications filed in Form-7 by Nadikerrappa. In the order sheet maintained by the Land Tribunal which is produced at Ex.P-4, the claim made by the plaintiff for the entire extent of 1 acre 14 guntas has been RFA 1134/2003 21 referred, but while granting occupancy rights, the extent is shown as 25 guntas. There is no discussion as to why the extent had to be restricted to only 25 guntas. Merely because occupancy rights were granted only to an extent of 25 guntas, it cannot be inferred or presumed that the plaintiff shall be deemed to have been in possession of only 25 guntas and not the remaining extent of 29 guntas. What all will follow is that the occupancy rights were granted in respect of 25 guntas only and not for the remaining extent of 29 guntas. For the purpose of proof of possession of the entire extent in support of the relief sought in the suit for grant of permanent injunction, the Court has to look into the revenue records, the previous lease deeds and other materials placed on record including the subsequent conduct of the parties. The Trial Court has rightly taken into consideration all the lease deeds, the revenue entries for the undisputed period which disclosed the name of the plaintiff as actual cultivator.
25. No doubt, the parties are subsequently litigating before the Land Tribunal. The plaintiff has moved for amendment of the order passed by the Land Tribunal seeking correction of the so-called clerical mistake for correctly showing the extent of RFA 1134/2003 22 land as 1 acre 14 guntas instead of only 25 guntas. The notice issued by the Tribunal on the request made by the plaintiff has been challenged before this Court and the learned Single Judge has quashed the said notice, but the matter is pending in writ appeal. Similarly, deceased defendant - Mariyappa challenged the order granting occupancy rights in favour of the plaintiff for 25 guntas. The said writ petition is also dismissed. Against the order of the learned Single Judge, he has filed a writ appeal. In this case, this Court is not concerned with the correctness or otherwise of the proceedings of the Tribunal. It is concerned with the actual and lawful possession of the suit schedule property by the plaintiff on the date of suit and the alleged interference by the defendant.
26. The contention of the Counsel for the appellant that the plaintiff has made false assertion in paragraph 2 of the plaint stating that he was the owner of the suit property and therefore, the equitable relief of permanent injunction cannot be granted, is not tenable. If the pleadings are examined as a whole, plaintiff has asserted his right over the property as tenant and not as absolute owner. Even as regards grant of occupancy rights by the Land Tribunal, as per the plaintiff the RFA 1134/2003 23 Tribunal has granted him occupancy as prayed for by him, but the order contains a clerical mistake. No suppression or misrepresentation can be attributed to the plaintiff. The fact remains that he has made the application for the entire extent of land and the Tribunal has not rejected his application for any portion. No doubt, the Tribunal has granted occupancy rights for 25 guntas. What is the effect of this order is the matter pending in writ appeal. This Court will not express any opinion on the same. Suffice to observe that the plaintiff has established his lawful possession over the entire extent of suit land as on the date of the suit and he has a right to protect his possession against the interference caused by the defendant. Reliance placed by Mr. Devanand on the decision in ANATHULA SUDHAKAR VS T.BUCHI REDDY (DEAD) BY LRS & OTHERS - (2008)4 SCC 594 is not apposite to the facts of the present case.
27. The defendant has not produced any material to show that he was in actual possession of the suit schedule land. Defendant - Mariyappa claims to have purchased the property on 30.08.1954 from one Venkatappa. The vendor - Venkatappa had executed a sale deed dated 07.07.1954 in favour of Sharabaradhya and the same was registered on 21.10.1954. RFA 1134/2003 24 Apparently, this sale deed in favour of Sharabaradhya was subsequent to the registration of the sale deed in favour of the defendant - Mariyappa. The revenue records were not immediately changed in the name of Mariyappa based on the registered sale deeds. The registered relinquishment deed is executed by Sharabaradhya on 24.09.1964 in favour of the defendant - Mariyappa relinquishing his rights in respect of the suit schedule land. It is thus clear that there were rival claims regarding title and possession to the property between Sharabaradhya and Mariyappa. It is unnecessary for the purpose of this case to go into the same. The fact remains that defendant has failed to show that he was in possession of the property and that the plaintiff was not in possession. On the other hand, plaintiff has proved that he was in possession of the suit schedule land.
28. Indeed, the defendant has examined only the Power of Attorney holder. His evidence is of not much consequence. The Power of Attorney holder can effectively adduce evidence as regards the acts done by him in pursuance to the Power of Attorney and matters which are within his knowledge. But, he cannot depose for the Principal for the acts done by the RFA 1134/2003 25 Principal which were in his knowledge. This position is well established as can be seen from the judgment in the case of JANKI VASHDEO BHOJWANI & ANOTHER VS INDUSIND BANK LIMITED & OTHERS - 2005(1) KCCR 227. It is also well established that a person in peaceful possession is entitled to retain his possession. Even a trespasser who is in settled possession of the property belonging to the original owner cannot be disposed by taking law into his hands by the owner, because the law will come to the aid of the person who is in settled possession and even the original owner can be injuncted from using force. Useful reference can be made to the judgment of the Supreme Court in this regard in the case of RAME GOWDA (D) BY LRS. VS M.VARADAPPA NAIDU (D) BY LRS. & ANOTHER - ILR 2006 KAR 1047.
29. Hence, for the foregoing reasons, I am of the considered view that the Trial Court has rightly decreed the suit recording the findings that the plaintiff has successfully proved his lawful possession over the suit property and the interference caused by the defendant. I do not find any illegality or perversity in the findings recorded and the conclusion reached by the Trial Court.
RFA 1134/200326
30. The appeal, therefore, being devoid of merits, is dismissed. In the facts and circumstances of the case, the parties are directed to bear their respective costs.
Sd/-
JUDGE PKS