Hamumanthi W/O Late Balappa And ... vs Hanumanthraya S/O Bheemayya And ...
2022 Latest Caselaw 3542 Kant

                            1




        IN THE HIGH COURT OF KARNATAKA
                 KALABURAGI BENCH

     DATED THIS THE 3RD DAY OF MARCH, 2022

                        BEFORE


     THE HON'BLE MR.JUSTICE ASHOK S. KINAGI


            MFA No.201835/2016 (CPC)

Between:

1.   Hanumanthi W/o Late Balappa,
     Age: 69 years, Occ: Agriculture,

2.   Hanumanthraya S/o Late Balappa,
     Age: 40 years, Occ: Agriculture,

3.   Soogamma D/o Late Balappa,
     Age: 38 years, Occ: Agriculture,

4.   Tayamma D/o Late Balappa,
     Age: 36 years, Occ: Agriculture,

5.   Ramesh S/o Late Balappa,
     Age: 30 years, Occ: Agriculture,

     All R/o Sunnadakal village,
     Tq. Deodurga,
     Dist: Raichur.
                                        ... Appellants
(By Sri. Shivanand Patil, Advocate)
                               2




And:

1.     Hanumanthraya S/o Bheemayya,
       Age: 52 years, Occ: Agriculture,

2.     Smt. Laxmi W/o Hanumanthraya,
       Age: 50 years, Occ: Household,

3.     Balgouda S/o Hanumanthraya,
       Age: 36 years, Occ: Agriculture,

4.     Mallikarjun S/o Hanumanthraya,
       Age: 28 years, Occ: Agriculture,

       All R/o Sunnadakal village,
       Tq. Deodurga,
       Dist. Raichur-584 111.
                                          ... Respondents

(By Sri.Gururaj Rao Kakkeri, Advocate for
 Sri.Ganesh Naik, Advocate for R1 to R4)

       This Miscellaneous First Appeal is filed under order
43 Rule 1 (r) of CPC, praying to allow the appeal and set
aside the impugned order dated 06.10.2016 on IA No.1 in
OS No.155/2016 on the file of the Senior Civil Judge at
Deodurga and allow the IA-1 of the plaintiffs/appellants.


       This appeal coming on for admission this day, the
Court delivered the following:-

                        JUDGMENT

The appellants are aggrieved by the order

passed on I.A.No.1 dated 06.10.2016 in

O.S.No.155/2016 by the Senior Civil Judge, Deodurga

has filed this appeal.

2. For the sake of convenience, parties are

referred to as per their ranking before the trial Court.

The appellants are the plaintiffs and respondents are

the defendants before the trial Court.

3. Facts giving rise to the filing of the appeal

briefly stated are that the plaintiffs have filed a suit in

O.S.No.155/2016 for relief of declaration and

injunction in respect of suit property. In the said suit,

the plaintiffs filed an application seeking an order of

temporary injunction restraining the defendants from

creating obstruction to the peaceful possession and

enjoyment of the suit schedule property. The plaintiffs

in support of application filed an affidavit contending

that the plaintiffs are the absolute owners of property

bearing Sy.No.12 measuring 16 acres 7 guntas

situated at Sunnadkal village, Deodurga taluk. The

said land was originally belonging to the husband of

plaintiff No.1 and father of the plaintiff Nos.2 to 5

namely Balappa Hanamappa @ Hanumagouda who

died leaving behind him the plaintiffs as his legal heirs

and successors to him and to his property. After the

demise of said Balappa S/o Hanamappa @

Hanumagouda, the plaintiff No.1 who is the wife of

said Balappa has succeeded to the said land and

continued in possession of the suit property by way of

cultivating the same. Due to financial problems, the

plaintiffs Nos.2 to 5 have migrated to Pune for their

livelihood and used to visit their village once in a

month. Defendant Nos.1 to 4 are no way concerned to

the family of the plaintiffs and they are totally

strangers to the family of the plaintiffs. On

09.05.2005 defendants Nos.1 to 4 without having any

right, title or interest over the suit schedule property

filed an application for effecting mutation in their

name with the forged signature of their mother. On

the basis of false documents, names of defendants

came to be entered in the revenue records, by way of

mutation order as per ME No.36/04-05 dated

23.06.2005. On the strength of the mutation order,

the defendants are trying to interfere in the

possession and enjoyment of the suit schedule

property. Hence, the plaintiffs filed an application

seeking for an order of temporary injunction. The said

application was opposed by the defendants by filing

objection denying the ownership of the plaintiffs over

the suit schedule property and further, it is contended

that the defendants/respondents are in possession

and enjoyment of the suit schedule property. It is also

contended that the suit property has mutated in the

names of the defendants vide mutation order in ME

No.36/04-05. It is contended that plaintiffs and

defendants are relatives. The plaintiffs were well

aware about the facts mentioned above and mutation

order effected in favour of defendants. Hence, prayed

to reject the application. The trial Court after hearing

the parties rejected the application filed by the

plaintiffs. Hence, this appeal is filed.

4. Heard the learned counsel for the

appellants/plaintiffs and the learned counsel for the

respondents/defendants.

5. Learned counsel for the plaintiffs submits

that the defendants have admitted the title of the

plaintiffs over the suit schedule property. He also

further submits that defendants by playing fraud on

the revenue authority got the property mutated vide

ME No.36/04-05. He further submits that the plaintiffs

are the owners of suit schedule property and they are

in possession of the suit schedule property. He further

submits that the trial Court has not properly

considered the material produced by the parties and

further submits that the trial Court has committed an

error in rejecting the application filed by the plaintiffs.

Hence, on these grounds prays to allow the appeal.

6. Per contra, learned counsel for the

defendants submits that names of defendants are

appearing in the revenue records as on the date of

filing of the suit. He further submits that there is

presumption under section 133 of the Karnataka Land

Revenue Act, (hereinafter referred to as 'the Act' for

short). The trial Court by drawing the presumption

under Section 133 of the Act has recorded a finding

that the defendants are in possession of the suit

schedule property. He further submits that the

impugned order passed by the trial Court is just and

proper and does not call for interference. Hence, on

these grounds prays to dismiss the appeal.

7. Perused the material on record and

considered the submissions of the learned counsel for

the parties. It is not in dispute that that the plaintiffs

have filed a suit for declaration and injunction in

respect of suit schedule property and defendants

appeared and filed written statement denying the title

of the plaintiffs over the suit schedule property. In the

said suit, the plaintiffs have filed an application

seeking an order of temporary injunction contending

that the plaintiffs are in possession of the suit

schedule property. In order to substantiate the

contention of the plaintiffs, the plaintiffs have not

produced any record to show that the plaintiffs are in

possession of the suit schedule property. On the

contrary, the names of the defendants are appearing

in the revenue records as on the date of filing of the

suit. From the perusal of the records, RTC extracts,

produced by the plaintiffs, disclose the names of

defendants in the Record of Rights. As per Section 133

of the Act, there is presumption in regard to revenue

entries. The revenue entries presumed to be true until

the contrary is proved or a new entry is lawfully

substituted therefor. In the present case, the plaintiffs

have not produced any rebuttal evidence. Further, it is

the case of the plaintiffs that the defendants by

creating the false documents have got

entered/mutated their names in the revenue records.

An allegation made against defendants in regard to

creation of documents or forgery or fraud, the matter

requires to be tried during the course of trial. The

Court cannot record a finding on the basis of affidavit

and counter affidavit. The names of the defendants

are appearing since from 2004-05 as per ME

No.36/04-05. It is not the case of the plaintiffs that

plaintiffs have challenged the mutation order effected

in favour of defendants. The trial Court was justified in

recording a finding that the allegation made by the

plaintiffs requires to be tried during the course of trial.

The plaintiffs have failed to establish the possession

over the suit schedule property as on the date of filing

of the suit. The plaintiffs have failed to establish prima

facie case balance of convenience and irreparable loss.

The trial Court considering the entire records was

justified in rejecting the application filed by the

plaintiffs. In view of the above discussion, I do not

find any ground to interfere with the impugned order.

Accordingly, appeal is dismissed.

In view of disposal of the appeal, I.A.No.1/2016

does not survive for consideration.

Registry is directed to transmit the Trial Court

records forthwith.

Sd/-

JUDGE

VNR