Mahadevamma vs Shivashankarappa
2022 Latest Caselaw 2154 Kant

                          1


     IN THE HIGH COURT OF KARNATAKA AT BENGALURU


       DATED THIS THE 10TH DAY OF FEBRUARY, 2022


                        BEFORE


          THE HON'BLE MR.JUSTICE M.G.S.KAMAL


       REGULAR SECOND APPEAL NO.2029/2013
                      C/W
       REGULAR SECOND APPEAL NO.1862/2013


IN R.S.A.NO.2029/2013:

BETWEEN:


MAHADEVAMMA
W/O LATE C.B. RAMEGOWDA
AGED ABOUT 61 YEARS
R/AT CHANDAGALU VILLAGE
HEBAL HOBLI
K.R. NAGAR TALUK - 571 607
                                        ... APPELLANT
(BY SRI RAJEEVA B.C., ADVOCATE)

AND:

1.     SECRETARY
       CHANDAGALU GRAM PANCHAYAT
       K.R. NAGARA TALUK
       MYSORE DISTRICT - 571 607

2.     THE CHIEF SECRETARY
                             2


     GOVT. OF KARNATAKA
     VIDHANA SOUDHA
     BANGALORE - 560 001

3.   TAHSILDAR
     K.R.NAGAR TALUK
     K.R. NAGAR - 571 607

4.   SHIVASHANKARAPPA
     S/O. LATE PUTTAPPA
     AGED ABOUT 64 YEARS

5.   JAVAREGOWDA
     DEAD BY HIS LRS

5(a). SMT. PUTTATHAYAMMA
      W/O LATE JAVAREGOWDA
      AGED ABOUT 70 YEARS

5(b). KRISHNAMURTHY
      S/O LATE JAVAREGOWDA
      AGED ABOUT 50 YEARS

5(c). MUKUNDA
      S/O LATE JAVAREGOWDA,
      AGED ABOUT 45 YEARS

5(a) TO 5(c) ARE RESIDENTS OF
CHANDAGALU VILLAGE
HEBBAL HOBLI
K.R.NAGARA TALUK
MYSORE DISTRICT - 571 607

6.   MANCHEGOWDA
     S/O LT. DEVI SIDDEGOWDA
     AGED ABOUT 70 YEARS

7.   PUTTEGOWDA
                           3


       S/O LT. DASEGOWDA
       AGED ABOUT 62 YEARS

8.     NAGARAJANAIKA
       S/O PUTTANAIKA
       AGED ABOUT 52 YEARS

9.     UDBUR RAJANAIKA
       S/O LATE SIDDANAIKA,
       AGED ABOUT 56 YEARS

10 .   SRINIVASAGOWDA
       DEAD BY HIS LRS.

10(a). SMT. SANNAMMA
      W/O LATE SRINIVASAGOWDA
      AGED ABOUT 70 YEARS,

10(b). GOPALA
       S/O LATE SRINIVASAGOWDA,
       AGED ABOUT 50 YEARS

R6 TO 10(b) ARE R/O
CHANDAGALU VILLAGE
HEBBAL HOBLI
K.R.NAGAR TALUK - 571 607
                                       ...RESPONDENTS
(BY SRI. B. RAJENDRA PRASAD, HCGP FOR R1 TO R3;
    SRI. B.S. NAGARAJ, ADVOCATE FOR R4, R5(A & B),
    R6, R9 & R10(A & B)
     R5(C) - SERVED)

      THIS APPEAL IS FILED UNDER SECTION 100 OF CODE OF
CIVIL PROCEDURE AGAINST THE JUDGEMENT & DECREE DTD
17.4.2013 PASSED IN R.A.NO.238/2012 ON THE FILE OF THE
PRESIDING OFFICER, C/C FAST TRACK COURT-III, MYSORE,
ALLOWING THE APPEAL AND SETTING ASIDE THE JUDGEMENT
                           4


AND DECREE DTD 17.1.2012 PASSED IN O.S.NO.553/2007 ON
THE FILE OF THE SENIOR CIVIL JUDGE AND JMFC, K.R.NAGAR.


IN R.S.A.NO.1862/2013:

BETWEEN:


MAHADEVAMMA
W/O LATE C.B.RAMEGOWDA
AGED ABOUT 61 YEARS
RESIDING AT
CHANDAGALU VILLAGE
HEBAL HOBLI
K.R.NAGAR TALUK - 571 602
                                         ... APPELLANT
(BY SRI RAJEEVA B.C., ADVOCATE)

AND:

1.     SHIVASHANKARAPPA
       S/O. LATE PUTTAPPA,
       AGED ABOUT 65 YEARS

2.     MANCHEGOWDA
       S/O LATE DEVI SIDDEGOWDA
       AGED ABOUT 76 YEARS

3.     PUTTEGOWDA
       S/O DASEGOWDA,
       AGED ABOUT 63 YEARS

4.     NAGARAJANAIKA
       S/O PUTTANAIKA
       AGED ABOUT 53 YEARS

5.     UDBOOR RAJANAIKA
       S/O LATE SIDDANAIKA
                           5


     AGED ABOUT 57 YEARS

6.   THE SECRETARY
     CHANDAGALU VILLAGE PANCHAYAT
     CHANDAGALU
     K.R.NAGAR TALUK - 571 607

7.   THE CHIEF SECRETARY
     GOVERNMENT OF KARNATAKA
     VIDHANA SOUDHA
     BANGALORE - 560 001

8.   THE TAHSILDAR
     K.R.NAGAR TALUK - 571 607

R1 TO R5 ARE AGRICULTURIST
RESIDING AT CHANDAGALU VILLAGE
HEBBAL HOBLI
K.R. NAGAR TALUK
MYSORE DISTRICT.
                                       ...RESPONDENTS
(BY SRI. B.S. NAGARAJA, ADVOCATE FOR R1 TO R5;
    SRI. B. RAJENDRA PRASAD, HCGP FOR R6 TO R8)

      THIS APPEAL IS FILED UNDER SECTION 100 OF CODE OF
CIVIL PROCEDURE AGAINST THE JUDGEMENT & DECREE DTD
17.4.2013 PASSED IN R.A.NO.110/2012 ON THE FILE OF THE
PRESIDING OFFICER, C/C FAST TRACK COURT-III, MYSORE,
ALLOWING THE APPEAL AND SETTING ASIDE THE JUDGEMENT
AND DECREE DTD 17.1.2012 PASSED IN O.S.NO.553/2007 ON
THE FILE OF THE SENIOR CIVIL JUDGE AND JMFC, K.R.NAGAR.

     THESE APPEALS COMING ON FOR ADMISSION THIS DAY,
THE COURT DELIVERED THE FOLLOWING:
                               6


                        JUDGMENT

The present regular second appeals are filed by

the appellant/plaintiff aggrieved by the judgment and

decree dated 17.04.2013 passed in R.A.Nos.110/2012

and 238/2012 on the file of the Fast Track Court-III,

Mysuru, (hereinafter referred to as 'the First Appellate

Court'), in and by which, allowing the said regular

appeals and the first appellate court set aside the

judgment and decree dated 17/01/2012 passed in

O.S.No.553/2007 on the file of Senior Civil Judge and

J.M.F.C., K.R.Nagar (hereinafter referred to as 'the

Trial Court').

2. The parties are referred to as per their

original rankings before the trial court.

3. The case of the plaintiff in brief is that; she

is the owner in possession of land measuring 1 acre

24 guntas in Sy.No.147 of Katnalu Hantha of

K.R.Nagar Taluk. That out of the said extent of 1 acre

24 guntas, 35 guntas is wet land and remaining 29

guntas is dry land. That she has grown 100

eucalyptus tress in the said 29 guntas of dry land and

she has been in possession and cultivation the said

land. That the property originally belonged to her

husband Ramegowda S/o Boraiah, who is also known

as Boregowda. That after his demise, revenue records

were mutated in the name of the plaintiff. That a

regular appeal No.151/2005-06 had been filed by the

8th defendant before the Assistant Commissioner to

direct the Tahsildar, K.R.Nagar to maintain khatha of

Burial ground to an extent of 29 guntas. That the

plaintiff had also filed RA.No.56/2005-06 before the

Assistant Commissioner to rectify the mistakes in the

revenue record. That the Assistant commissioner

directed the plaintiff to approach the civil courts. That

the defendants were interfering with the peaceful

possession and enjoyment of the suit schedule

property. The aforesaid aspect of the matter

constrained the appellant/plaintiff to seek relief of

declaration and injunction against the

respondents/defendants.

4. The defendant No.8 filed written statement

and defendant Nos.1, 4, 5 and 6 adopted the same. It

is contended that out of the land measuring 1 acre 24

guntas in Sy.No.147, 29 guntas of land belonged to

Panchayathi and the same had been used as burial

ground and the plaintiff has been in possession and

enjoyment over remaining 35 guntas and as such the

plaintiff was not in possession of entire extent of land.

That the plaintiff obtained the khatha behind the back

of the defendants by filing a RA.151/2005-06 before

the Assistant Commissioner. That the Assistant

Commissioner directed the Tahsildar, K.R.Nagar to

maintain khatha of burial ground to an extent of 29

guntas in the aforesaid survey number. As such the

villagers were using the said extent of land as burial

ground since time immemorial. That 29 guntas of

land had been acquired by the Government for the

purpose of burial ground and there are eucalyptus

trees grown in the burial ground. That since the

plaintiff had no manner of right over the said 29

guntas of land, the question of dispossessing the

plaintiff from the suit schedule property does not

arise. The suit is bad for non-joinder of necessary

parties. That the suit is not maintainable for want of

notice under Section 295(2) of the Karnataka

Panchayath Raj Act. Hence, sought for dismissal of

the suit with exemplary cost.

5. The Trial Court based on the pleadings

framed the following issues:

(1) Whether the plaintiff proves that the suit schedule property was belonged to her husband Ramegowa?

(2)     Whether the plaintiff proves that
she is the        absolute owner of suit
schedule property?


(3)     Whether the plaintiff proves her
lawful     possession      over   the   suit

schedule property as on the date of suit?

(4)     Whether the plaintiff proves the
alleged         interference      by    the
defendants?


(5)     Whether the defendants 1, 4 to
6 and 8 to 10 prove that 29 guntas in

the suit schedule property has been acquired by the Government for burial ground being used by Mohammedans?

(6) Whether the defendants 1, 4 to 6 and 8 prove that the suit against

defendant No.8 is not maintainable for want of notice under Section 295(2) of Karnataka Panchayath Raj Act?

(7) Whether the defendants 1, 4 to 6 and 8 to 10 prove that the suit is bad for mis-joinder of unnecessary parties and non-joinder of necessary parties?

(8) Whether the plaintiff is entitled to the relief as sought for?

(9) What order or decree?

6. The son of the appellant/plaintiff namely,

C.R.Rupesha has been examined as PW.1 and one

C.K.Shankar has been examined as PW.2 and

exhibited 10 documents as per Ex.P1 to Ex.P10. On

behalf of the respondents/defendants, one

Shivashakarappa and Ambika have been examined as

DWs.1 and 2 and exhibited 4 documents as Exs.D1 to

D4. On appreciation of evidence, the Trial Court, by its

judgment and decree dated 17/01/2012 decreed the

suit of the appellant/plaintiff holding that the

appellant/plaintiff is the absolute owner in possession

of the suit schedule property and consequently

restrained the defendants permanently from

interfering with the peaceful possession and

enjoyment of the appellant/plaintiff over the suit

schedule property.

7. Aggrieved by the same, defendant Nos.1,

3, 5 and 6 filed regular appeal in R.A.No.110/2012

while defendant No.8, the Secretary of Chandagalu

Grama Panchayath filed regular appeal in

R.A.No.238/2012 before the First Appellate Court.

Considering the grounds urged in the appeal memo,

the First Appellate Court framed the following points

for its consideration.

(1) Whether the plaintiff/1st respondent is the absolute owner of the entire suit schedule property?

           (2)   Whether     the       Trial        Court    is
           justified   in    granting           relief       of

declaration and injunction to the 1st respondent?

(3) Whether the judgment and decree of the Trial Court calls for interference in RA.No.110 and 238 of 2012?

(4) What order?

8. On re-consideration of oral and

documentary evidence, the first appellate court, by its

judgment and decree dated 17/04/2013 allowed the

aforesaid appeals, setting aside the judgment and

decree passed by the Trial Court. Being aggrieved

with the same, the plaintiff is before this Court.

9. Sri B.C.Rajeeva, learned counsel for the

appellant/plaintiff reiterating the grounds urged in the

appeal memorandum submitted;

(i) That the defendants had categorically

admitted in the written statement about

plaintiff being the absolute owner to the

extent of 35 guntas of land. As regards

remaining extent of land, the plaintiff has

produced cogent evidence in support of her

claim of she being the owner to the entire

extent of land, but this aspect of the

matter has not been taken into

consideration by the first appellate court.

(ii) That the plaintiff has grown 100

eucalyptus trees in the dry land measuring

29 guntas of land and she has been in

possession over the said property.

(iii) That the reasoning assigned by the

first appellate court to dismiss the suit for

non-compliance of Section 295(2) of

Karnataka Panchayath Raj Act (for short

hereinafter referred to as 'the Act') has

caused great mis-carriage of justice.

(iv) That the plaintiff while filing the suit

had also filed an application under Section

80(2) of CPC seeking dispensation of notice

to the respondents/defendants. The said

application had been allowed. In that view

of the matter, the first appellate court was

not justified in dismissing the suit on the

said technicality.

As such, the same has given rise to substantial

question of law requiring consideration. Hence,

sought for allowing the appeal.

10. Per contra, Sri B.S.Nagaraj, learned

counsel appearing for the defendant Nos.4, 5(A & B),

6, 9 & 10(A & B) and learned HCGP appearing for

defendant Nos.1 to 3 justifying the judgment and

decree passed in the aforesaid regular appeals submit

that the revenue records produced by the plaintiff

herself would establish that she is the owner to an

extent of 35 guntas and 29 guntas of land has been

reflected in the revenue records to be burial ground

and as such no substantial question of law arises in

these appeals for consideration. Hence, sought for

dismissal of the appeals.

11. Heard the learned counsel for the parties.

12. Considering the rival submissions of the

parties and in view of the fact that the defendants in

their written statement have admitted the plaintiff

being the owner in possession of the land to an extent

of 35 guntas of land and the same having been

reflected in the revenue records at Exs.P1, P3 and P8,

the appeal is admitted to consider the following

substantial question of law:

     "Whether      in    the     facts       and     in     the
     circumstances       of    the     matter      the     first

appellate court is justified in setting aside the judgment and decree dated 17/01/2012 passed in OS.No.553/2007 by the trial court in its entirety?"

13. Though these appeals are posted for

admission and the aforesaid substantial question of

law has been framed, with the consent of learned

counsel for the plaintiff and defendants, the matters

are taken up for final disposal.

14. The aforesaid facts do not require

reiteration. The trial court, based on the evidence

produced by the plaintiff had decreed the suit in its

entirety. Aggrieved by the judgment and decree

dated 17/01/2012 in OS.No.553/2007, the defendants

No.1 to 7 being the villagers and the defendant No.8

being the Secretary of the village Panchayath had

preferred the regular appeals in RA.Nos.110/2012 and

238/2012 respectively before the first appellate court.

The first appellate court taking note of the entries in

the revenue records and taking note of the contention

of the official defendant No.8 regarding non-

compliance of Section 295(2) of the Act read with

section 80 (2) of CPC came to the conclusion that the

suit of the plaintiff was not maintainable as she has

not complied with the mandatory provision of the Act

requiring issue of a notice and eventually allowed the

aforesaid regular appeals by setting aside the

judgment and decree passed by the trial court.

15. There is a categoric admission by the

defendant No.8, the Secretary of Chandagalu Grama

Panchayath, with regard to the ownership and

possession of the plaintiff to the extent of 35 guntas

of land out of 1 acre 24 guntas in Sy.No.147 of

Katnalu Hantha Village, K.R.Nagar taluk and same is

reflected in the revenue records namely Ex.P3-M.R.

extract, Ex.P7-RTC, Ex.P8-index of lands, Ex.P9-

Records of right and the order of Assistant

Commissioner at Ex.P10 which establish the

entitlement of the plaintiff to be the owner in

possession of 35 guntas of land. The first appellate

court ought to have taken into consideration these

admission and material evidence made available on

record.

16. The contents of Ex.P10 being the order of

the Assistant Commissioner passed in regular appeal

No.151/2005-06 dated 17/01/2007 reveal that a

specific direction was issued to the Tahsildar to

register the name of the plaintiff to the extent of 35

guntas of land and remaining 29 guntas to be

registered and maintained in the name of burial

ground. There is also reference with regard to the

acquisition of 29 guntas of land by the Government for

the purpose of burial ground. The said order has not

been challenged and the same has attained finality,

which fact is not disputed by the plaintiff.

17. The suit is of the year 2007. The parties

contested the suit and defendants also filed aforesaid

regular appeals. There is no dispute that upon the

application filed by the plaintiff under section 80(2) of

CPC pleading urgency, the plaintiff was permitted to

maintain the suit even in the absence of issuance of

statutory notice. After service of summons

respondents No.7, 8 and 9 had not raised any serious

dispute with regard to maintainability of the suit and

they had filed written statements and continued to

contest the suit. In that view of the matter and in the

aforesaid facts and circumstances of the matter,

dismissal of a suit by the first appellate court for non-

compliance of Section 295(2) of the Act cannot be

sustained.

18. On a holistic reading of the pleading and

material evidence and the reasoning of the trial court

and first appellate court, this court is of the

considered view that the judgment and decree passed

by the trial court as well as the first appellate court

are required to be modified to the extent of declaring

plaintiff to be the absolute owner in possession of 35

guntas of land out of 1 acre 24 guntas of land of

Katnalu Hantha village, K.R.Nagar Taluk and hence

the substantial question of law is answered

accordingly. In the result, the following.

                         ORDER

      i)     Regular         Second              Appeals

No.2029/2013 and 1862/2013 filed

by the appellant/plaintiff are hereby

disposed off.

ii) The plaintiff is declared to be the

owner in possession of the land in

Sy.No.147 to an extent of 35 guntas

out of 1 acre 24 guntas situated at

Katnalu Hantha of K.R.Nagar Taluk.

      iii)   The    judgment      and   decree     dated

             17/01/2012             passed            in

OS.No.553/2007 by the trial court

and the judgment and decree dated

17/04/2013 passed in

RA.Nos.110/2012 and 238/2012 are

modified to the above extent.

Sd/-

JUDGE

MKM