Karnataka High Court
Sri. Pomya Naik vs The State Of Karnataka on 22 February, 2022
Bench: N S Gowda
1
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 22ND DAY OF FEBRUARY, 2022
BEFORE
THE HON'BLE MR.JUSTICE N.S.SANJAY GOWDA
R.S.A. NO.33 OF 2016 (INJ)
BETWEEN:
1. SRI. POMYA NAIK
S/O. LATE DHARMA NAIK
AGED ABOUT 67 YEARS
AGRICULTURIST
SEVALAL NAGAR
HONNALI TALUK-577 217.
2. SRI. CHANDRA NAIK
S/O. JANYA NAIK
AGED ABOUT 66 YEARS
AGRICULTURIST
SEVALAL NAGAR
HONNALI TALUK-577 217.
3. SRI. SHANKRA NAIK
S/O. LALYA NAIK
AGED ABOUT 71 YEARS
AGRICULTURIST
SEVALAL NAGAR
HONNALI TALUK-577 217.
... APPELLANTS
(BY SRI.PRUTHVI WODEYAR, ADVOCATE)
AND:
1. THE STATE OF KARNATAKA
REPRESENTED BY ITS CHIEF SECRETARY
VIDHANA SOUDHA
2
DR. AMBEDKAR STREET
BENGALURU-560 001.
2. THE DEPUTY COMMISSIONER
DAVANAGERE DISTRICT
DAVANAGERE-577 001.
3. THE ASSISTANT COMMISSIONER
DAVANAGERE SUB DIVISION
DAVANAGERE-577 001.
4. THE TAHASILDAR
HONNALI TALUK
HONNALI-577 217.
5. THE VILLAGE ACCOUNTANT
THIMMALAPURA VILLAGE
HONNALI TALUK-577 217
6. THE GRAMA PANCHAYAT
TIMMALAPURA VILLAGE
HONNALI TALUK-577 217
7. THE TALUK PANCHAYAT
REPRESENTED BY
THE EXECUTIVE OFFICER
HONNALI-577 217.
8. SRI. RAMA NAIK
S/O. JANYA NAIK
AGED ABOUT 62 YEARS
AGRICULTURIST
SEVALAL NAGAR
HONNALI TALUK-577 217
9. SRI. GANESH NAIK
S/O. JANYA NAIK
AGED ABOUT 56 YEARS
AGRICULTURIST
SEVALAL NAGAR
HONNALI TALUK-577 217.
3
10. SRI. J. RAJU
S/O. JANYA NAIK
AGED ABOUT 50 YEARS
AGRICULTURIST
SEVALAL NAGAR
HONNALI TALUK-577 217
... RESPONDENTS
(BY SRI. S.B. SHAHAPUR, ADVOCATE FOR R1 TO R7,
R8 TO R10 SERVED AND UNREPRESENTED)
THIS APPEAL IS FILED UNDER SECTION 100 OF CPC.,
PRAYING TO SET ASIDE THE JUDGMENT AND DECREE OF
DISMISSAL PASSED BY THE COURT OF SENIOR CIVIL JUDGE
AT HARIHAR IN R.A. NO.3/2013 DATED 31.08.2015,
CONFIRMING THE JUDGMENT AND DECREE PASSED BY THE
LEARNED CIVIL JUDGE (JR. DN.) HONNALI IN O.S.115/2008
DATED 03.10.2012.
THIS APPEAL COMING ON FOR ADMISSION, THIS DAY,
THE COURT DELIVERED THE FOLLOWING:
JUDGMENT
This second appeal is by the plaintiff Nos.1, 2 and 6.
2. They had filed a suit seeking for declaration that
they were the owners in possession and enjoyment of the suit
schedule property, which was the land bearing Sy. No.16/1
measuring 12 acres 26 guntas. They had also sought for
mandatory injunction to direct the defendants, who were the
State and its sub-ordinates to restore their names in column
Nos.9 and 12 of the revenue records. They also sought for a
decree of permanent injunction.
3. It was the case of the plaintiffs that the suit
property originally belonged to their ancestors by name
Hankya Naik and after his death, the property had been
succeeded to by one Dharma Naik in the year 1918. It was
their further case that after the death of Hankya Naik, they
had succeeded to the suit property. The plaintiffs also
categorically stated that the Tahasildar, Honnali had passed
an order of grant on 22.01.1924 by which he had granted the
suit property in favour of Hankya Naik and Pomya Naik and
ever since they were in possession of the suit property. It was
stated that in the revenue records, the property was shown
as Lambani Thanda though the said entry was not supported
by any documentary evidence. They therefore stated that
they were constrained to file a suit for declaration and for
restoration of their names in the revenue records.
4. The State and its subordinates contested the matter
by filing a written statement in which they denied all the
averments and stated that the suit property was Banjaara
Thanda and that was treated as Banjaara Thanda since a very
long time and a Notification had also been issued by the State
Government on 27.09.1994 to that effect. They specifically
denied the claim that the Tahasildar, Honnali had granted suit
schedule property in the name of the ancestors of the
plaintiffs and that their names had been mutated in the
revenue records pursuant thereto. It was stated that as per
the Akar band, Records of Rights, Index of land and RTC
extracts, for a very long time it had been recorded that a
Lambani Thanda had been situated and at no point of time
the property was under cultivation.
5. The Trial Court on assessing the evidence adduced
before it came to the conclusion that the plaintiffs had failed
to establish that the land had been granted to them. The Trial
Court took note of the fact that the Grant Certificate on which
the entire basis of the plaintiffs claim was based had itself not
been produced and therefore, the plaintiffs were not entitled
for a decree of declaration. The Trial Court also found that the
revenue records did not support the claim of the plaintiffs as
they were in possession and it, accordingly, dismissed the
suit in its entirety.
6. The Appellate Court on reassessment of the entire
evidence concurred with the findings of the Trial Court that
the plaintiffs had failed to prove and establish that they had
title over the suit property. The Appellate Court also noticed
that the very Grant Certificate on which the entire claim was
based had not been produced. It also noticed that the
revenue records produced did not indicate that they were in
possession. The Appellate Court also took note of the fact
that P.Ws.2 and 3 themselves admitted that about 150
houses had been put up in the suit property and same was
known as Banjaara Thanda. It was also noticed that, P.W.2,
in his cross-examination stated that he did not know from
whom the suit property had come to the plaintiffs and that
150 houses were situated on the land and the land was
known as Banjaara Thanda and was in existence for more
than 50 years. It was also noticed that he had stated that the
suit property was not a cultivable land and on the basis of the
said evidence, the Appellate Court found no reason to
disagree with the findings of the Trial Court and it
accordingly, dismissed the appeal.
7. Learned counsel appearing for the appellants
contended that the revenue records indicated that the
plaintiffs were, in fact, in possession and having regard to the
fact that there were certain revenue records evidencing the
said fact, both Courts had erred in dismissing the suit.
8. Both the Courts have taken note of the fact that the
Grant Certificate which was the foundational basis of the
plaintiffs for claiming title was not produced and therefore, it
could not be accepted that the plaintiffs had title over the suit
property. In my view, this reasoning of the Courts below
cannot be found fault with. When the very document of title
on which the plaintiffs relied upon to establish their legal right
over the suit land had not been produced to establish the title
of the plaintiffs, quite obviously, no declaratory decree could
have been granted by the Courts.
9. The arguments that the possession of the plaintiffs
was admitted cannot be accepted in view of the deposition of
the P.W.2, who had categorically stated that in the suit
property there were 150 houses and it was not known as
Banjaara Thanda and had existed for more than 50 years.
The further fact that he had stated that the suit property not
a cultivable land also reinforces the findings of the Courts
below that the plaintiffs were not in possession. I, therefore,
find no substantial questions of law arising for consideration
in this appeal and therefore, this Regular Second Appeal is
accordingly dismissed.
Sd/-
JUDGE
NBM
