Kallawwa W/O. Mahadev Talawar vs Mallappa Parshuram Walke
2022 Latest Caselaw 22 Kant

              IN THE HIGH COURT OF KARNATAKA
                      DHARWAD BENCH

           DATED THIS THE 3RD DAY OF JANUARY 2022

                          BEFORE

      THE HON'BLE MR. JUSTICE SACHIN SHANKAR MAGADUM

        REGULAR SECOND APPEAL NO.5120 OF 2012 (INJ)

BETWEEN
KALLAWWA W/O. MAHADEV TALAWAR,
AGE: 64 YEARS,
OCC: AGRICULTURE,
R/O. LAXMIGALLI,
KONDASKOPPA VILLAGE,
TQ AND DIST: BELGUAM-590001
                                               ...APPELLANT

(BY SMT. VEENA HEGDE AND SMT.SEETALAXMI P, ADVOCATES)

AND
1.    MALLAPPA PARASHURAM WALKE
      SINCE DECEASED BY HIS LRS.

1A.   SARJAPPA S/O. MALLAPPA WALKE
      AGE: 65 YEARS,
      OCC: AGRICULTURE,
      R/O. KONDASKOPPA,
      TQ AND DIST: BELGUAM-590001

1B.    MARUTI S/O. MALLAPPA WALKE,
      AGE: 54 YEARS,
      OCC: AGRICULTURE,
      R/O. KONDASKOPPA,
      TQ AND DIST: BELGUAM-590001

1C.   NAGENDRA S/O. MALLAPPA WALKE
      AGE: 50 YEARS,
      OCC: AGRICULTURE,
                                    2




        R/O. KONDASKOPPA,
        TQ AND DIST: BELGUAM-590001

1D.     RAYANNA S/O. MALLAPPA WALKE
        AGE: 48 YEARS,
        OCC: AGRICULTURE,
        R/O. KONDASKOPPA,
        TQ AND DIST: BELGUAM-590001

1E.     PARASHURAM
        S/O. MALLAPPA WALKE
        AGE: 45 YEARS,
        OCC: AGRICULTURE,
        R/O. KONDASKOPPA,
        TQ AND DIST: BELGUAM-590001

1F.     FAKIRABAI DEVAPPA KANOJI
        AGE: 69 YEARS,
        OCC: HOUSEHOLD WORK
        R/O. BHATKANDE,
        KONDWACHWAD
        TQ AND DIST: BELGUAM-590001

                                                      ...RESPONDENTS

(BY SRI. SANJAY S KATAGERI, ADV.,)

        THIS RSA IS FILED UNDER SECTION 100 OF C.P.C.,
AGAINST     THE   JUDGMENT        AND   DECREE      DATED   09.12.2011
PASSED IN R.A.NO.59/2009 ON THE FILE OF THE PRINCIPAL
SENIOR CIVIL JUDGE BELGAUM, ALLOWING THE APPEAL FILED
AGAINST THE JUDGMENT DATED 26.02.2009 AND THE DECREE
PASSED IN O.S.NO.412/2005 ON THE FILE OF THE IV ADDITIONAL
CIVIL    JUDGE    (JR.DN)   AND    J.M.F.C.,   AT   BELGAUM,   PARTLY
DECREEING THE SUIT FILED FOR PERMANENT INJUNCTION.
                                 3




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


                             JUDGMENT

This captioned second appeal is filed by the appellant-

plaintiff questioning the divergent findings of the Courts

below.

2. The subject matter of the appeal is agricultural

land bearing Survey No.51/6A measuring 5 acres 27

guntas situated at Kondaskoppa village of Belgaum Taluk,

Belgaum District. The appellant-plaintiff filed a suit for

injunction in O.S.No.412/2005 against the respondent-

defendant by alleging that she belongs to Harijan

community and her mother was the absolute owner of the

suit land. It was contended that her mother died in the

year 2001 and the appellant-plaintiff being the only class-I

heir, inherited the property left behind by her mother. A

specific contention was taken that the appellant-plaintiff is

in actual physical possession, cultivation and vahivat of the

suit land since time immemorial. The appellant-plaintiff

alleged in the plaint that the defendant without any

semblance of right, threatened to dispossess the appellant-

plaintiff and this compelled the appellant-plaintiff to verify

the records and on verification, she found the entries in

Records of Rights pursuant to mutation and M.E.No.685.

On the said set of pleadings, the plaintiff filed a bare suit

for injunction. During the pendency of the suit, the

appellant-plaintiff sought amendment and by way of

amendment sought relief of declaration and questioned the

sale deed dated 17.05.1973 executed by the appellant and

her mother in favour of father of the respondent-defendant

and therefore, sought for declaration to declare that the

sale deed as null and void.

3. The said suit was contested by the respondent-

defendant. Both the parties, in support of their contentions,

let in ocular evidence and produced documentary evidence.

The Trial Court having examined the oral and documentary

evidence decreed the suit by declaring that the sale deed

dated 17.05.1973 as null and void. However, while

decreeing the suit, the Trial Court answered issue No.1 and

2 in negative by holding that the appellant-plaintiff is not in

a possession of the suit land and the Trial Court also

answered issue No.4 in affirmative by holding that the

appellant-plaintiff is entitled for the relief of declaration.

Assailing the judgment of the Trial Court, the defendant

preferred an appeal and the First Appellate Court on re-

appreciation of oral and documentary evidence held that

the judgment of the Trial Court suffers from serious

infirmity and accordingly reversed the findings of the Trial

Court and allowed the appeal by dismissing the suit. Being

aggrieved by the divergent finding, the appellant-plaintiff is

before this Court.

      4.    Heard      the   learned     counsel   appearing   for

appellant-plaintiff,     learned       counsel     appearing   for

respondent-defendant and perused the records.

5. On perusal of the plaint, I would find that

though the relief of declaration was sought by amending

the plaint, however the plaintiff in support of proposed

amendment with regard to relief of declaration has not at

all led any foundation by way of pleadings in the plaint.

Though an attempt was made at para No.4A of the plaint

by disputing the sale deed dated 17.05.1973, which was

executed by the plaintiff and her mother by alleging that it

is a sham and bogus document, however there are

absolutely no pleadings indicating the nature of the land

and the details of grant made by the competent authority

so as to bring within the ambit of the provisions of the

Karnataka Scheduled Castes and Scheduled Tribes

(Prohibition of Transfer of Certain Lands) Act, 1978 (for

short "the PTCL Act"). The Trial court without examining

this basic fact, which would go to the root of the case, has

proceeded in decreeing the suit merely on assumption that

the plaintiff belongs to Harijan community and therefore,

the alienation which was effected way back in the year

1973 would squarely fall within the purview of provisions of

sections 4 and 5 of the PTCL Act and on this basis, the

learned Judge proceeded to declare the sale deed as null

and void. The Trial Court has laid emphasis on the cross-

examination of DW1, which is in fact reproduced by the

learned Judge in para No.19 of the judgment. At para

No.19 of the judgment, learned Judge has culled out

relevant portion where the purchaser has admitted that the

plaintiff's family belongs to Harijan community. However,

the fundamental question that needed to be adjudicated by

the learned Judge was whether the grant was made under

the Karnataka Land Grant Rules, 1969 particularly

attracting the provisions of the PTCL Act and even if

provisions of the PTCL Act are applicable, the question

further which needed to be adjudicated by the learned

Judge was as to whether the appellant-plaintiff would have

knocked the doors of competent Civil Court when she had a

remedy under special statute. Both these fundamental

questions have gone unanswered.

6. However, the First Appellate Court on re-

appreciation of oral and documentary evidence has rightly

referred to the documents, which are in fact produced by

the appellant-plaintiff. By placing reliance on Ex.P9 and 10,

the First Appellate Court being a final fact finding authority

came to the conclusion that the subject matter of the suit,

which is an agricultural land and was alienated by the

plaintiff and her mother way back in the year 1973, was in

fact a Vatan land and same was re-granted in favour of

plaintiff's mother. The relevant portion is culled out by the

Appellate Court at para No.21, which would clinch the

issue. On perusal of the para No.21, I would find that the

land was re-granted in favour of the mother of the plaintiff.

Ex.P10 which is mutation extract in M.E.No.683 clearly

refers to an order of the Assistant Commissioner permitting

the plaintiff and her mother to alienate the land and in the

very said mutation there is a clear reference that it is a

Vatan land. If these significant details are taken into

consideration, then I am of the view that the findings and

conclusion arrived at by the Appellate Court is based on

proper appreciation of evidence on record. I do not find any

infirmity in the judgment and the conclusion arrived by the

Trial court and consequent judgment rendered by the First

Appellate Court. If the suit land is a Vatan land, it pre-

supposes that the mother of the plaintiff was the holder of

the land and it is on account of the Karnataka Village

Offices Abolition Act, 1961, the mother of the plaintiff

applied for re-grant and consequently the authorities have

re-granted the land in favour of plaintiff's mother. This

presumption further got strengthened in terms of the

recitals in the sale deed. Even in the sale deed, the suit

land is referred as a "Raitava land", which pre-supposes

that this land was not at all a surplus government land.

The Appellate Court on proper appreciation of the evidence

on record has arrived at a conclusion that the suit land

would not fall within the purview of the provisions of the

PTCL Act. The Appellate Court has also dealt with the issue

of limitation. Admittedly, the sale deed is dated

17.05.1973. The suit was filed in the year 2005. As per

Ex.P5, the mother of the plaintiff died on 30.01.2005. The

appellant-plaintiff has sought the relief of declaration by

way of amendment and this amendment was allowed on

20.12.2007. The Appellate court having taking note of

these factual aspects held that the suit is hopelessly barred

by limitation. The judgment and decree rendered by the

Appellate Court is in accordance with law and therefore,

the grounds urged in the present appeal memo cannot be

exceeded and no substantial question of law would arise for

consideration in this appeal. The appeal is devoid of merits.

I do not find grounds in the present appeal and

accordingly, the present appeal is dismissed.

7. In view of disposal of the appeal, pending

interlocutory applications, if any, do not survive for

consideration and are dismissed accordingly.

Sd/-

JUDGE YAN