D. Eranna S/O D K Durugappa vs Nayanappa S/O Somappa
2022 Latest Caselaw 3903 Kant

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             IN THE HIGH COURT OF KARNATAKA
                     DHARWAD BENCH

          DATED THIS THE 8TH DAY OF MARCH 2022

                          PRESENT

       THE HON'BLE MR. JUSTICE H.T.NARENDRA PRASAD

                            AND

       THE HON'BLE MR. JUSTICE RAJENDRA BADAMIKAR

           REGULAR FIRST APPEAL No.100050/2016


BETWEEN:

D. ERANNA S/O D K DURUGAPPA,
AGED ABOUT: 39 YEARS, OCC: AGRICULTURIST,
R/O: HARIGINADONI VILLAGE,
TALUK and DIST: BELLARI-583 101.
                                               .. APPELLANT
(BY SRI. GODE NAGARAJ, ADV.)


AND:

1.   NAYANAPPA S/O SOMAPPA,
     AGED ABOUT 50 YEARS,
     OCC AGRICULTURIST,
     R/O KUDITHINI VILLAGE,
     TALUK and DIST. BELLARI-583 101.

2.   LAKSHMI W/O NAYANAPPA,
     AGED ABOUT: 46 YEARS, OCC: HOUSEWIFE,
     R/O: KUDUTHINI VILLAGE,
     TALUK and DIST. BELLARI-583 101.

3.   THE SPECIAL LAND ACQUISITION OFFICER,
     K.I.A.D.B. INDUSTRIAL AREA,
     LAKKAMMANAHALLI, DHARWAD-580 004.
                                        .. RESPONDENTS
(BY SRI. B. CHIDANAND, ADV. FOR R1 AND R2.
SRI. SHASHANK S. HEGDE, ADV FOR R3.)
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     THIS RFA FILED UNDER SEC. 96(1) R/W. UNDER ORDER 41
RULE 1 OF CPC., AGAINST THE JUDGMENT AND DECREE
DTD:10.12.2015 PASSED IN O.S.NO.110/2011 ON THE FILE OF
THE FIRST ADDITIONAL SENIOR CIVIL JUDGE AT BALLARI,
DISMISSING    THE    SUIT   FILED     FOR   DECLARATION.

    THIS APPEAL COMING ON FOR FINAL HEARING, THIS DAY,
RAJENDRA BADAMIKAR, J., DELIVERED THE FOLLOWING:

                          JUDGMENT

This is an appeal filed by the plaintiff under Section

96(1) read with Order XLI Rule 1 of the Code of Civil

Procedure, 1908, challenging the judgment and decree passed

by the learned I Additional Senior Civil Judge, Ballari, in

O.S.No.110/2011 dated 10.12.2015 whereby the learned

Senior Civil Judge has dismissed the suit filed by the plaintiff

with costs.

2. For the sake of convenience, the parties herein

are referred with the original ranks occupied by them

before the trial Court.

3. The brief factual matrix leading to the case are

that the suit property bearing Sy.No.190/3-B measuring 3

acres 90 cents was granted in favour of Badakappa, who

was the maternal grandfather of the plaintiff. The Revenue

Records were standing in the name of Badakappa and he

had a son by name Honnurappa and 3 daughters namely

Maliyamma, Honnuramma and Pakkiramma. The 3rd

daughter-Pakkiramma was given in marriage to one

Durugappa and they were living along with said Badakappa.

Badakapa died about 30 years back and at the time of his

death, he was in possession and enjoyment of the suit

property. The mother of the plaintiff-Pakkiramma died

about 6 years back and after her death, the plaintiff

continued to be in possession and enjoyment of the suit

property. That defendants 1 and 2 are husband and wife

and they have no right, title or interest over the suit

schedule property and they are trying to interfere with the

possession of the plaintiff over the suit property.

Defendant No.3 has acquired the suit schedule property for

installation of steel factory and illegally issued notice to

defendants 1 and 2 basing on revenue records. The

defendants are trying to get the compensation amount in

respect of the suit schedule property and hence, the

plaintiff has filed the suit seeking declaration of his title

over the schedule property.

4. Defendant Nos.1 and 2 have appeared and filed

their written statement denying the allegations and

assertions made thereunder. Defendant Nos.1 and 2

specifically contended that on 30.10.2000, the suit

schedule property was granted in favour of defendant Nos.1

and 2 by Bagur Hukum Committee by drawing the

proceedings and 3 acres had been granted in favour of

defendant Nos.1 and 2 and 90 cents remained with the

Government and 3rd defendant has acquired the said

property. As such, defendant Nos.1 and 2 are entitled for

compensation. It is the further contention of defendant

No.1 that, since the said property is reassigned in their

favour, they are the owners of the suit schedule property

and as such, sought for dismissal of the suit with exemplary

costs.

5. Defendant No.2 has adopted the written

statement filed by defendant No.1 while defendant No.3 did

not contest the matter.

6. On the basis of these pleadings, the trial Court

has framed following 9 issues:

1. Whether the plaintiff proves that the suit schedule properties are granted property to his grand father Badakappa son of Kanakanayaka as per Order of the Tahasildar, Ballari dated 30.07.1968 in the proceedings D.R.Dis.No.258/65?

2. Whether the plaintiff proves that his grand father was in possession of said property, subsequently his parents and he continued to be in possession and cultivation of suit schedule property?

3. Whether the defendant No.1 proves that the property comprised in Sy.No.190/3/B measuring 3.90 acres was the land belonging to the Government and out of 3.90 acres, 3 acres of land had been assigned to him and second defendant from Bagur Hukum Committee by its over dated 30.10.2000 in proceedings No.1/2000-01?

4. Whether the defendant No.1 proves that he along with defendant No.2 were in possession of entire 3.90 acres of the said land?

5. Whether the defendant No.1 proves that the said land was barren since 1980-81 and was in the possession of Government?

6. Whether the defendant No.1 proves that there is no cause of action to the suit?

7. Whether the plaintiff proves that the frame of the suit is correct?

8. Whether the plaintiff is entitled to the relief's claimed in the suit?

9. What order or decree?

7. The plaintiff got examined himself as PW.1 and

he has further got examined two witnesses as PW.2 and

PW.3 and placed reliance on 20 documents marked at

Exs.P-1 to P-20. Defendant No.1 was examined as DW-1

and placed reliance on 19 documents marked at Exs.D-1 to

D-19.

8. The learned Senior Civil Judge, after hearing the

arguments, has answered issue Nos.1 to 4, 7 and 8 in the

negative while issue No.6 was answered in the affirmative

and issue No.5 was partly answered in the affirmative and

ultimately dismissed the suit with costs.

9. Being aggrieved by this judgment and decree,

the plaintiff has field this appeal.

10. We have heard the arguments advanced by the

learned counsel for the appellant/plaintiff and the learned

counsel appearing for the respondents. Perused the

records.

11. The learned counsel for the appellant would

contend that Badakappa was the maternal grandfather of

the plaintiff and the suit property was granted in favour of

Badakappa and after his death, it is being cultivated by the

mother of the plaintiff and thereafter the plaintiff and as

such, he has interest in the suit schedule property. Hence,

he would contend that, only on the basis of the entries in

the Revenue Records, defendant No.3 has awarded

compensation to defendant Nos.1 and 2 which has

compelled him to file the suit.

12. Per contra, learned counsel for respondent

Nos.1 and 2 would contend that the suit schedule property

was granted in favour of defendant Nos.1 and 2 by Bagur

Hukum Committee as they were unauthorised occupants

and accordingly names of defendant Nos.1 and 2 are

mutated and after acquisition of land by defendant No.3,

the compensation was awarded in favour of defendant

Nos.1 and 2. He would also contend that the plaintiff, all

along is asserting that, he is the maternal grand son of

Badakappa but originally it was granted in favour of Daroji

Badakappa. He would also contend that the plaintiff never

asserted that he is the heir of Daroji Badakappa and Ex.P-2

discloses that he is claiming under Timmappa @ Badakappa

and as such, the trial Court is justified in rejecting his

claim. He would also contend that, all other heirs of

Timmappa or Badakappa or Daroji Badakappa were not

impleaded and he cannot file a suit for declaration without

challenging the grant in favour of defendant Nos.1 and 2.

As such, he has sought for dismissal of the appeal.

13. Having heard the arguments and perusing the

records, the following point arises for our consideration:

" Whether the judgment and decree passed by the trial Court suffers from any perversity, arbitrariness or illegality so as to call for any interference by this Court?"

14. The record produced at Ex.P-10 discloses that

the suit property was initially granted in favour of Daroji

Badakappa. The plaintiff all along contended that he is the

maternal grand son of Badakappa. Ex.P-2, which is the

genealogical tree, produced by the plaintiff discloses that,

the original propositus was Timmappa @ Badakappa.

There is no reference that Badakappa is also known as

Daroji Badakappa. In the entire plaint, there is no pleading

that Badakappa, as referred in Ex.P-2, is also known as

Daroji Badakappa. As such, there is absolutely no piece of

evidence to show that the plaintiff is the heir of Daroji

Badakapa. Even otherwise, on perusal of Ex.D-2 it is

evident that the plaintiff does not have exclusive right over

the entire property. There are two branches of Gangamma

and Hanumakka and all the legal heirs, who are referred in

Ex.P-2, were not impleaded in the suit as a necessary

parties. Though, it is submitted that there was settlement

between the family members, the said fact is not pleaded in

the plaint and whether there is a settlement or not, is

required to be stated by the interested parties and not by

the plaintiff and without impleading them, the plaintiff

cannot seek for any declaration of his title.

15. Apart from that, from Ex.D-2 it is evident that

the Bagar Hukum Committee has granted the suit schedule

property to the extent of 3 acres in favour of defendant

Nos.1 and 2 by order dated 15.09.2004 under Rule 94-A of

the Karnataka Land Revenue Act, 1964. This order is not

challenged by the plaintiff or any other legal heirs of

Timmappa or Badakappa. Without there being any

challenge to the Grant made in favour of defendant Nos.1

and 2, the plaintiff cannot directly file a suit for declaration

of his title. He ought to have challenged the Grant before

the competent authority under Rule 108D(6) of the

Karnataka Land Revenue Rules, 1966. Without exhausting

any of these remedies, the plaintiff has straightaway filed

the suit for declaration of his title and as such, the suit

itself is misconceived.

16. The trial court has considered all these aspects

and appreciated the oral and documentary evidence in

proper perspective by answering these points. The

judgment and decree passed by the trial Court does not

suffer from any perversity or infirmity so as to call for any

interference by this Court. As such, the appeal being devoid

of merit needs to be rejected.

17. Accordingly, the point under consideration is

answered and we proceed to pass the following order:

The appeal is dismissed.

Sd/-

JUDGE

Sd/-

JUDGE kmv