Karnataka High Court
Sri. Ankaiah vs The Tahasildar on 31 July, 2024
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NC: 2024:KHC:30285
RSA NO.1581 OF 2018
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 31ST DAY OF JULY, 2024
BEFORE
THE HON'BLE MR. JUSTICE E.S. INDIRESH
REGULAR SECOND APPEAL NO.1581 OF 2018 (INJ)
BETWEEN:
1. SRI. ANKAIAH
S/O LATE TALEYARI NANJAIAH
AGED ABOUT 66 YEARS.
2. SRI. RAJENDRA
S/O ANKAIAH
AGED ABOUT 46 YEARS.
BOTH ARE RESIDING AT:
HOSAMALAGI GRAMA,
KOLLEGALA TALUK,
CHAMARAJANAGAR DISTRICT - 577 440.
...APPELLANTS
(BY SRI. H. MALATESH, ADVOCATE)
AND:
Digitally signed by
ARUNKUMAR M S
Location: High 1. THE TAHASILDAR
Court of Karnataka
KOLLEGALA TALUK OFFICE,
KOLLEGALA,
CHAMARAJANAGARA DISTRICT - 577 440.
2. THE DEPUTY COMMISSIONER
OFFICE OF THE DEPUTY COMMISSIONER,
CHAMARAJANAGARA DISTRICT,
CHAMARAJANAGARA - 577 440.
...RESPONDENTS
(BY SRI. H. HANUMANTHARAYA LAGALI, AGA)
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NC: 2024:KHC:30285
RSA NO.1581 OF 2018
THIS REGULAR SECOND APPEAL IS FILED UNDER
SECTION 100 OF THE CODE OF CIVIL PROCEDURE, AGAINST
THE JUDGMENT AND DECREE DATED 29TH JUNE, 2018 PASSED
IN REGULAR APPEAL NO.08 OF 2018 ON THE FILE OF THE
SENIOR CIVIL JUDGE AND JMFC., KOLLEGALA, ALLOWING THE
APPEAL AND SETTING ASIDE THE JUDGMENT AND DECREE
DATED 23RD MARCH, 2016 PASSED IN ORIGINAL SUIT NO.134
OF 2012 ON THE FILE OF THE PRINCIPAL CIVIL JUDGE AND
JMFC., KOLLEGALA.
THIS APPEAL, COMING ON FOR ADMISSION, THIS DAY,
JUDGMENT WAS DELIVERED THEREIN AS UNDER:
CORAM: HON'BLE MR. JUSTICE E.S. INDIRESH
ORAL JUDGMENT
This Regular Second Appeal is filed by the plaintiffs assailing the judgment and decree dated 29th June, 2018 passed in Regular Appeal No.08 of 2018 on the file of the Senior Civil Judge and JMFC., Kollegala (for short, hereinafter referred to as 'First Appellate Court'), allowing the appeal and setting aside the judgment and decree dated 23rd March, 2016 passed in Original Suit No.134 of 2012 on the file of the Principal Civil Judge and JMFC., Kollegala (for short, hereinafter referred to as 'Trial Court'), wherein he suit filed by the plaintiffs came to be decreed.
2. For the sake of convenience, the parties in this appeal shall be referred to in terms of their status and ranking before the Trial Court.
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NC: 2024:KHC:30285 RSA NO.1581 OF 2018
3. It is the case of plaintiffs that the plaintiffs are in possession and enjoyment of the suit schedule property bearing Survey No.417/C measuring 1 acre out of 29.33 acres situate at Hosamalagi Village, Kollegala Taluk. It is stated in the plaint that, though the suit schedule property originally belongs to the Government, the father of the plaintiff No.1 was cultivating the same and accordingly, plaintiffs were in possession, after the death of the father of the plaintiff No.1. It is further stated in the plaint that the defendant-Authorities have issued notice dated 27th April, 2011 to evict the plaintiffs from the suit schedule property, without conducting an enquiry and following the procedure as provided under law. It is further case of plaintiffs that the suit schedule property is 'Halla' and cannot be utilized for the purpose of the graveyard and therefore, the plaintiffs have filed Original Suit No.134 of 2012 before the Trial Court, seeking relief of permanent injunction in respect of the suit schedule property.
4. On service of notice, defendants entered appearance and filed detailed written statement contending that the Government has reserved the suit schedule property for the purpose of graveyard for SC/ST community at Hosamalagi -4- NC: 2024:KHC:30285 RSA NO.1581 OF 2018 Village and suit schedule property is 1 acre of land out of total 29.33 acres in Survey No.417/C of the said Hosamalagi Village. It is stated in the written statement that the plaintiffs were evicted from the suit schedule property in the presence of the villagers and mahazar has been drawn on 02nd April 2012 and accordingly, defendants sought for dismissal of the suit.
5. On the basis of pleadings on record the Trial Court framed issues for its consideration.
6. In order to prove their case, plaintiffs have examined two witnesses as PW1 and PW2 and got marked six documents as Exhibits P1 to P6. On the other hand, defendants examined one witness as DW1 and got marked 10 documents as Exhibits D1 to D10. The Trial Court, after considering the material on record, by judgment and decree dated 23rd March, 2016, decreed the suit of the plaintiffs and restrained the defendants from interfering with the peaceful possession and enjoyment of suit schedule property by the plaintiffs, till they are evicted under due process of law. Being aggrieved by the same, defendant-Authorities have preferred Regular Appeal No.8 of 2018 on the file of the First Appellate Court and appeal was -5- NC: 2024:KHC:30285 RSA NO.1581 OF 2018 resisted by the plaintiffs. The First Appellate Court, after considering the material on record, by its judgment and decree dated 29th June, 2018 allowed the appeal and as such, set- aside the judgment and decree passed in Original Suit No.134 of 2012 on the file of the Trial Court. Being aggrieved by the same, plaintiffs have preferred this Regular Second Appeal.
7. Heard Sri. H. Malatesh, learned counsel appearing for the appellants and Sri. Hanumantharaya Lagali, learned Additional Government Advocate appearing for respondents.
8. Sri. H. Malatesh, learned counsel appearing for the appellant-plaintiffs contended that the Trial Court, after considering the material on record rightly decreed the suit of the plaintiffs, by granting relief of permanent injunction against the defendants, however, the First Appellate Court, without re- appreciating the material on record has passed the impugned judgment and decree which, requires to be set-aside in this appeal.
9. It is the categorical argument advanced by learned counsel appearing for appellants that the plaintiffs were in settled possession in respect of the land in question and the -6- NC: 2024:KHC:30285 RSA NO.1581 OF 2018 respondent-Authorities ought to have resorted to provisions contained under Section 39 of the Karnataka Land Revenue Act, 1964 to evict the plaintiffs from the suit schedule property and in absence of the same, the finding recorded by the First Appellate Court, requires to be interfered with in this appeal.
10. Per contra, Sri. Hanumantharaya Lagali, learned Additional Government Advocate appearing for respondents submitted that the plaintiffs are neither the owners of suit schedule property nor were in possession of the same. He further contended that the suit schedule property has been used as a graveyard by the SC/ST community as the same has been granted by the Deputy Commissioner, Chamarajanagara for the said purpose. Accordingly, learned Additional Government Advocate submitted that the finding recorded by the First Appellate Court is just and proper, which does not call for interference in this appeal
11. In the light of the submission made by learned counsel appearing for the parties, it is not in dispute that the suit schedule property belongs to the Government and same has been used as a graveyard by the SC/ST community as -7- NC: 2024:KHC:30285 RSA NO.1581 OF 2018 granted by the competent authority. That apart, the perusal of the finding recorded by the First Appellate Court would indicate that the Mahazar has been drawn as per Exhibit D3 and accordingly, the respondent authorities have taken possession of the suit schedule property on 02nd April, 2012. It is also forthcoming from the Exhibit P1 that the respondent-Authorities have issued notice to the plaintiffs and in this regard, the plaintiffs had given representation as per Exhibit P2. The RTC extracts produced at Exhibits P3 to P6, though show the name of one Taleyari Nanjaiah in the cultivator column, however, the perusal of the finding recorded by the First Appellate Court would indicate that the possession of the suit schedule property had been taken by the respondent-Authorities on 02nd April, 2012. Though the DW1 admits about the possession of the plaintiffs in the cross-examination, documents produced by the defendants itself speaks otherwise and therefore, the First Appellate Court taking into consideration the fact that the plaintiffs are not in possession of the suit schedule property subsequent to drawing up of Mahazar on 02nd April, 2012 (Exhibit-D3), had allowed the appeal preferred by the defendants. Therefore, taking into account the fact that the -8- NC: 2024:KHC:30285 RSA NO.1581 OF 2018 Mutation Register extracts produced at Exhibits D5 to D10, I am of the view that the First Appellate Court, has rightly interfered with the judgment and decree passed by the Trial Court under Order XLI Rule 1 of the Code of Civil Procedure. In that view of the matter, taking in account the finding recorded by the Courts below that the plaintiffs are not in possession of the suit schedule property pursuant to the Mahazar drawn by the competent authorities on 02nd April, 2012 (Exhibit D3), no interference be called for in this appeal. As the plaintiffs were failed to make out a case for framing of substantial question of law as required under Section 100 of the Code of Civil Procedure, this appeal deserves to be dismissed at the stage of admission itself. Accordingly, Regular Second Appeal is dismissed.
SD/-
(E.S.INDIRESH) JUDGE ARK