Rama W/O. Keera Naik vs Poornanand S/O. Venkatesh Bhat
2022 Latest Caselaw 1122 Kant

IN THE HIGH COURT OF KARNATAKA DHARWAD BENCH AT
                    DHARWAD
      DATED THIS THE 25TH DAY OF JANUARY, 2022
                        BEFORE
 THE HON'BLE MR.JUSTICE SACHIN SHANKAR MAGADUM
            R.S.A.NO.5574/2012 (PERM/INJ)
BETWEEN :
1. SMT.RAMA W/O. KEERA NAIK,
   AGE: 57 YEARS, OCC: AGRICULTURE & COOLIE
   R/O. SAKALBENA, AVERSA, ANKOLA,
   DIST: UTTAR KANNADA-520031.

2. SANTOSH S/O. KEERA NAIK,
   AGE: 37 YEARS, OCC: AGRICULTURE & COOLIE,
   R/O. SAKALBENA, AVERSA, ANKOLA,
   DIST: UTTAR KANNADA-520031.

3. MOHINI D/O. KEERA NAIK,
   AGE: 36 YEARS, OCC: AGRICULTURE & COOLIE,
   R/O. SAKALBENA, AVERSA, ANKOLA,
   DIST: UTTAR KANNADA-520021.

4. MANJU S/O. KEERA NAIK,
   AGE: 30 YEARS, OCC: AGRICULTURE & COOLIE,
   R/O. SAKALBENA, AVERSA, ANKOLA,
   DIST: UTTAR KANNADA-520031.
                                           ... APPELLANTS
(BY SRI K.S.PATIL & SRI SADANANDA M.K.,
      SRI K.L.PATIL & SRI S.B.NAIK ADVTS.)

AND :
POORNANAND S/O VENKATESH BHAT,
AGE : 63 YEARS, OCC: TRUCK OWNER,
R/O KODIBAG, KARWAR (U.K.).520031.
                                             ...RESPONDENT
(BY SRI F.V.PATIL & SRI NANDISH PATIL, ADVTS. )
      THIS APPEAL IS FILED UNDER SECTION 100 OF THE
CODE OF CIVIL PROCEDURE, 1908 PRYING THIS COURT TO SET
ASIDE THE JUDGMENT AND DECREE DATED 30.03.2011 PASSED
IN R.A.NO.361/2006 BY THE SENIOR CIVIL JUDGE, KUMTA AND
THE JUDGMENT AND DECREE DATED 24.10.2002 PASSED BY
THE CIVIL JUDGE, ANKOLA AND DECREE THE SUIT OF THE
PLAINTIFFS/APPELLANTS IN THE INTEREST OF JUSTICE AND
EQUITY.
                               2




     THIS APPEAL COMING ON FOR ADMISSION THIS DAY,
THE COURT DELIVERED THE FOLLOWING:


                      : JUDGMENT :

The captioned second appeal is filed by the

unsuccessful plaintiffs who are questioning the

concurrent judgment and decree of the Courts below

who have dismissed the suit filed for declaration and

injunction.

2. Facts leading to the above case are as

follows:

The appellants/plaintiffs filed a suit for

declaration and injunction in respect of suit land

bearing Sy.No.102 B4 totally measuring 4 acres 17

guntas. The appellants/plaintiffs have contended that

their ancestor Keera Thaku Naik was cultivating the

land as tenant. The appellants/plaintiffs have further

contended that the husband of appellant No.1 and

father of appellant Nos.2 to 4 namely Keera Thaku

Naik applied for grant of land. The Authority under the

provisions of the Mysore Land Grant Rules, 1969

granted the suit land by order dated 22.09.1970. The

appellants/plaintiffs have further contended that, the

husband of appellant No.1 was cultivating the suit

land and had planted about 800 casurina plants, about

20 cashew nut trees and banana plants. The

appellants/plaintiffs claim that since the time of their

ancestors, they are residing in the ancestral house

which is situated at a distance of two furlong and they

had constructed a shed covered with coconut leaves in

the suit property. The appellants/plaintiffs further

contended that, the original grantee Keera Thaku Naik

i.e., husband of appellant No.1 passed away on

08.09.1990. The appellants/plaintiffs alleged that

respondent/defendant has created a concocted

document with an intention to grab the suit schedule

land. The appellants/plaintiffs claimed that the

respondent/defendant is not an agriculturist and

therefore he is not competent to purchase the land as

his annual income is more than Rs.1,00,000/-.

3. The Trial Court having assessed the oral

and documentary evidence has found that the

alienation is in fact after expiry of 15 years and the

Trial Court also was of the view that even otherwise

the husband of appellant No.1 had submitted an

application to the Tahasildar and it was only after

securing permission, the husband of appellant No.1

has alienated the suit schedule property in favour of

respondent/defendant under the registered sale deed

dated 20.08.1990 for sale a consideration of

Rs.35,000/-. The contention of the appellants/

plaintiffs is that, the market value of the property as

on the date of sale deed was in fact higher than what

is stated in the sale deed. Though such a contention

was taken by the appellants/plaintiffs, however no

documentary evidence are placed on record to

indicate that respondent/defendant has purchased the

property for a meager sale consideration. The Trial

Court having taken note of the rebuttal evidence on

record has come to conclusion that the

respondent/defendant pursuant to sale deed had

improved the land. It has come in the evidence that

the respondent/defendant dug wells and installed four

pump sets. On these set of reasonings, the Trial Court

has come to conclusion that the appellants/plaintiffs

have failed to establish their lawful possession as on

the date of filing of the suit and consequently alleged

interference is not proved and accordingly dismissed

the suit of plaintiffs.

      4.    Being     aggrieved   by   the     same,   the

appellants/plaintiffs      preferred         appeal     in

R.A.No.361/2006 before the First Appellate Court. The

First Appellate Court after assessing the judgment and

decree of the Trial Court and on re-appreciation of the

oral and documentary evidence has also concurred

with the findings of the Trial Court and has come to

conclusion that the husband of appellant No.1 has sold

the suit land for valuable sale consideration and the

sale was for legal necessities. The Appellate Court

having perused Exs.D.8, D.9, D3 and also D6 has

recorded a categorical finding that the respondent/

defendant in fact has discharged the debt of Keera

Thaku Naik. Ex.D.6 is a certificate issued indicating

that the loan over the suit property was cleared by

Keera Thaku Naik on 30.06.1989. On re-appreciation

of oral and documentary evidence, the Appellate Court

has also proceeded to dismiss the appeal.

5. Heard learned counsel appearing for the

appellants and learned counsel appearing for the

respondent. Perused the concurrent judgments and

decree under challenge.

6. The present suit is filed by the legal heirs of

original grantee namely Keera Thaku Naik. Keera

Thaku Naik applied for grant of land and the

authorities on enquiry granted the land on

22.09.1970. The original grantee has sold the suit

land on 20.08.1990 in favour of respondent/defendant

under a registered sale deed for valuable sale

consideration. The clinching rebuttal evidence on

record clearly indicates that the sale by original

grantee was to overcome the financial distress and the

clinching evidence also indicates that the purchaser

had cleared the loan and the certificates are also

placed on record, which is evident from Ex.D.6. The

original grantee during his life time has never

questioned the sale deed. If the averments made in

the plaints are taken into consideration, this Court

would find that the present appellants/defendants who

are widow and children of original grantee have no

independent right in the suit land. The original grantee

has sold the property and has received sale

consideration and was also able to clear of the loan.

The sale deed is of the year 1990 and the suit is filed

in the year 1994. Subsequent purchaser has

developed the land and rights of the purchaser i.e.,

respondent/defendant have stood crystallized by

passage of time. The evidence on record would clearly

indicates that this present suit is filed by making a

feeble attempt with a hope that they would gain

something by keeping this litigation alive. If the

original grantee has parted with the suit land and if

the right and title has already passed on to

respondent/defendant, the present suit for declaration

and injunction is not at all maintainable. Even the

allegation regard to alienation without prior

permission is also dealt by both the Courts on

examination of materials on record and have come to

conclusion that the alienation by grantee is after

expiry of non alienation clause. Permission is also

sought from jurisdictional Tahasildar.

7. If the clinching rebuttal evidence on record

is examined, then this Court would find that the

appellants/plaintiffs are not at all in possession. The

relief of declaration that the sale deed does not bind

on the appellants/plaintiffs share also is misconceived,

because the suit land was admittedly granted to the

husband of appellant No.1 and father of appellant

Nos.2 to 4. Therefore, it was a self acquired property.

In this background, the relief of declaration sought by

the appellants/plaintiffs is totally misconceived. The

suit has to fail as consequential relief of injunction is

sought by the appellants/plaintiffs. The same is also

hit by section 34 of Specific Reliefs Act. The clinching

rebuttal evidence on record clearly demonstrates that

the appellants/plaintiffs are not in possession.

Therefore, without seeking relief of possession, the

present suit is also not maintainable. If the title has

already passed on under registered sale deed duly

executed by the original grantee, the appellants/

plaintiffs who do not have any independent right

cannot maintain the present suit for declaration and

injunction.

8. All these significant details are taken into

consideration. In a suit for declaration and injunction,

the appellants/plaintiffs approaching the Court has to

establish to satisfy two conditions. He has to establish

his title and lawful possession as on the date of the

filing of the suit. Plaintiff have failed to prove their

title and as well as possession. No substantial

question of law arises. Appeal is devoid of merits and

accordingly the same stands dismissed.

Sd/-

JUDGE EM