Karnataka High Court
Ganapati Shankar Bhat vs Dr. Satish Mahabaleshwar Bhat on 11 March, 2022
Bench: Ravi V.Hosmani
IN THE HIGH COURT OF KARNATAKA DHARWAD BENCH
DATED THIS THE 11 T H DAY OF MARCH, 2022
BEFORE
THE HON'BLE MR.JUSTICE RAVI V.HOSMANI
R.S.A. NO.5387/2013 (INJ.)
BETWEEN
1. GANAPATI SHANK AR BHAT
AGED ABOUT 58 YEARS,
R/O. NEELKOD, T Q:HONNAVAR
DIST: UTTAR KANNADA 581334
2. SHIVARAM SHANKAR BHAT
AGED ABOUT 56 YEARS, OCC: AGRICULTURE
R/O. NEELKOD, T Q:HONNAVAR
DIST: UTTAR KANNADA 581334
3. SRIPAD SHANKAR BHAT
AGED ABOUT 54 YEARS, OCC: AGRICULTURE
R/O. NEELKOD, T Q:HONNAVAR
DIST: UTTAR KANNADA 581334
4. SRIDHAR SHANKAR BHAT
AGED ABOUT 52 YEARS, OCC: AGRICULTURE
R/O. NEELKOD, T Q:HONNAVAR
DIST: UTTAR KANNADA 581334
5. KRISHNA SHANKAR BHAT
AGED ABOUT 48 YEARS, OCC: AGRICULTURE
R/O. NEELKOD, T Q:HONNAVAR
DIST: UTTAR KANNADA 581334
...APPELLANTS
(BY SRI.V.G.BHAT , ADV.)
AND
1. DR. SATISH MAHABALESHWAR BHAT
AGED ABOUT 60 YEARS,
2
OCC: MEDICAL PRACTIONER
R/O. HADINBAL, TQ:HONNAVAR
DIST: UTTAR KANNADA 581334
2. VENKATRAMAN MAHABALESHWAR HEGDE
SINCE DECEASED BY HIS LRS
2A. VISHNU VENKATRAMAN HEGDE
AGE: APPROX. 55 YEARS,
R/O. NEELKOD, T Q: HONNAVAR,
DIST: UTTARA KANNADA 581334
3. MAHABALESHWAR VENKATRAMAN HEGDE
AGE: 59 YEARS, OCC: AGRICULTURE
R/O. NEELKOD, T Q: HONNAVAR,
DIST: UTTARA KANNADA 581334
4. MAHADEVI KOM. VENKATRAMAN HEGDE
SINCE DECEASED BY HIS LRS R2A & R3
...RESPONDENTS
(BY SRI.SHIVARAJ S. BALLOLI, ADV. FOR R2A,
SRI.SHASHANK S. HEGDE, ADV. FOR R3,
R2(A) AND R3 ARE LRS. OF DECEASED R4,
R1 SERVED)
THIS RSA IS FILED UNDER SECTION 100 OF CPC AGAI NST
THE JUDGMENT AND DECREE DATED 02.04.2012 PASSED IN
R.A. NO.344/2001 ON THE FILE OF THE SENIOR CIVIL JUDGE,
HONAVAR, ALLOWING THE APPEAL, FILED AGAI NST THE
JUDGMENT DATED 06.12.2000 AND THE DECREE PASSED IN
O.S. NO.64/1988 ON THE FILE OF T HE ADDL. CIVIL JUDGE (JR.
DN.) HONAVAR, DECREEING THE SUIT FILED FOR INJUNCTION,
RESTRAINING THE DEFENDANTS FOR THE USE AND ENJOYMENT
OF THE PROPERTY.
THIS RSA COMING ON FOR ADMISSION THIS DAY, THE
COURT , DELIVERED THE FOLLOWING:
3
JUDGMENT
Challenging the judgment and decree dated
02.04.2012 passed by Senior Civil Judge, Honnavar in
R.A. No.344/2001, this appeal is filed.
2. The appellants herein were plaintiffs in O.S.
No.64/1988 while respondent No.1 was plaintiff No.6
and respondent Nos.2, 3 and 4 herein were defendants
1 to 3 respectively. Appellants herein were respondents
in R.A. before the first appellate Court while
respondents herein were appellants.
3. For the sake of convenience, parties
hereinafter will be referred to as per their ranks before
trial Court.
4. The plaintiffs filed O.S. No.64/1988 stating
that plaintiff Nos.1 to 5 are brothers. Along with
plaintiff No.6 they were owners of Sy. No.37 of Neelkod
village. That defendant No.2 was son of defendant No.1
and defendant No.3 was wife of defendant No.1. It was
stated that plaintiffs' grandfather Sri.Shivaram Gopal
Bhat and Sri.Ganapathi Krishna Hegde were owners of
Sy. No.37 of Neelkod village. That father of defendant
No.1 Mahabaleshwar Venkataramana Hegde was
moolgenidar. At that time, government granted betta
land privileges in Sy. No.82-b-10 measuring 3 acres 24
guntas for better cultivation of Sy. No.37. The said
betta land is 'suit property' herein.
5. That Land Tribunal, Honnavar granted
occupancy rights to plaintiffs in respect of several lands
including Sy. No.37 of Neelkod village. Therefore,
plaintiffs are in possession and enjoyment of suit
properties. Upon interference by defendants with
plaintiffs' privileges over betta land, plaintiffs filed suit.
6. On service of summons, defendant No.1 filed
written statement denying plaint averments, but
admitting that plaintiffs' ancestors were owners of Sy.
No.37 and asserting that father of defendant No.1 was
moolgenidar under plaintiffs' ancestors. He further
stated that plaintiffs were not granted privileges over
suit land. They also specifically denied that plaintiffs
were in possession. They further denied that fence put
up by plaintiffs was removed by defendants. Defendants
claimed to be in possession of suit land. Defendant No.1
specifically denied that Sy. No.37 was bagayat land and
therefore, suit property could not have been assigned to
said land. Hence, mutation entry recording same was
invalid. Defendant Nos.2 and 3 adopted written
statement filed by defendant No.1.
7. Based on pleadings, Trial Court framed
following issues:
"1) Whether the plaintiffs prove that
they are in lawful possession and
enjoyment of the suit schedule
property?
2) Whether plaintiffs further prove
that the alleged interference by
the defendants?"
Thereafter, plaintiff No.2 was examined as PW.1. The
Tahasildar, Honnavar was examined as PW.2 and one
Sri.Ganapathi Subraya Bhat was examined as PW.3.
Exhibits P1 to P16 were marked. On behalf of
defendants, defendant No.1 examined himself as D.W.1
and marked Exhibits D1 to D11.
8. In his evidence, PW.1 reiterated plaint
averments. In his cross-examination, it was elicited that
he was not aware how and when the suit land was
assigned as betta land to land belonging to them.
During cross-examination, it is elicited that defendant
No.1 got land bearing Sy. No.37 of Neelkod from
children of Vaikuntha Prabhu. PW.1 admits that he is
not aware of any government order assigning betta land
to his land that there is no fence towards north and
western side of his land that there is a path way to
reach the suit land.
9. The Tahsildar, Honnavar is examined as PW.2.
PW.2 produced Mutation Entry Register as Ex.P16. In his
cross-examination, it is elicited that Ex.P16(a) namely
half portion of Entry No.497 is torn and he is unable to
say Entry No.497 pertains to which land.
10. PW.3 is adjacent land owner of plaintiffs. He
deposed that suit land was assigned as betta land to
plaintiffs' land and that they were using the same.
During cross-examination, it is elicited that there is
litigation between defendants and PW.3.
11. In support of their case, plaintiffs also marked
Exs.P1 - record of rights of Sy. No.37, Ex.P2 is Mutation
Entry No.497, Ex.P5 is order of Land Tribunal,
Honnavar, granting occupancy rights to plaintiffs'
ancestor, Ex.P7 is Form No.7, Ex.P16 is Mutation Entry
Register of Neelkod Village and Ex.P16(a) Mutation
Entry No.497 among other.
12. Defendant No.1 was examined as DW1. In his
deposition, DW1 stated that grandfather of plaintiff
namely Shivaram Gopal Bhat was owner of Sy. No.37.
DW1's grandfather was of Shivaram Gopal Bhat in
respect of Sy. No.37 from 1867. Since then land bearing
Sy. No.37 was in possession and cultivation of family of
defendant No.1. Thereafter, Shivaram Gopal Bhat had
sold said land to Vaikunta Krishna Prabhu. After death
of Vaikunta Krishna Prabhu, his children Seetharam and
Nagesh succeeded to the property. From them,
defendant No.1 purchased land bearing Sy. No.37 under
registered sale deed dated 25.04.1961. DW1 further
stated that by virtue of said deed, defendant No.1, who
was tenant of Sy. No.37 became its owner and
continued in possession and enjoyment of property.
DW1 denied suggestions that land bearing Sy. No.82-b-
10 was assigned as betta land to Sy. No.37. During
cross-examination, it is elicited from DW1 that about 7
to 8 years ago, Sy. No.37 was converted as bagayath.
Though DW1 denies suggestion that Sy. No.82-b-10 was
assigned to plaintiff's land, he admits that Sy. No.82/B9
was assigned to his land bearing Sy. No.68/2/2A that
same was entered in revenue records. In support of
their evidence, defendants got marked copy of sale deed
of year 1961 as Ex.D7.
13. On consideration, trial Court held that
plaintiffs established their lawful possession over suit
property as entries in record of rights produced as
Exs.P1 and P2 and Exs.P8 to P14 corroborated their
claim. On examination of Ex.P16-mutation entry
register, trial Court found that a portion of mutation
entry from 497 was torn, remaining portion clearly
mentioned assignment of Sy. No.82-b-10 as betta land
to Sy. No.37/1 and 2. It also held that plaintiffs derived
title as per grant of occupancy rights in respect of land
bearing Sy. No.37, by Land Tribunal as per Ex.P5. It
held that plaintiffs proved lawful possession referring to
presumptions in favour of revenue entries as per
Section 133 of Karnataka Land Revenue Act. Denial of
plaintiffs' claim in respect of suit property was held to
substantiate interference by defendants. Based on same
it decreed suit. While reversing findings of trial Court,
Appellate Court has merely stated as follows:
"28. In a suit for injunction, the plaintiff
has to prove his case to the satisfaction of the
Court. Therefore, I am of the opinion that the
trial Court wrongly given much weight to the
mutation entry, RTC entry and to the fact that
the defendants admitted grant of Sy.No.82
Betta 9 to their malki land etc. In this case,
the defendants have produced number of
documents at Exs.D.1 to D.11. Though the
trial Court discussed all these documents, it is
wrongly held that the cumulative effect of all
Ex.D.1 to D.11 favours the case of the
plaintiffs and their case is more probable than
the defendants, without considering these
documents. As the sale deed produced by the
defendants at Ex.D.1 and the mutation entry
produced by the learned counsel for appellant
at M.E.No.1306 on 29.9.2011 to show that the
defendants' father purchased Sy.No.37 from
Seetaram and Nagesh Prabhu on 15.12.1961
and the above said mutation entry was
effected to that effect. Hence, the same can be
considered. Therefore, as rightly argued by the
learned counsel for appellants, there is
nothing on record to show that at the time of
granting the suit land, whether the plaintiffs'
malki land was bagayat land.
29. Therefore, taking into consideration
the evidence on record, I am of the opinion
that the trial Court has erred in decreeing the
suit of the plaintiffs and the trial Court has not
taken into consideration that there is no
mutation entry for grant of Betta land.
Whether the plaintiffs are owners of Sy.No.37
or not is immaterial in this case. The trial
Court failed to consider that whether the
plaintiffs are able to prove their right over the
Betta land bearing Sy.No.82 B/10, when the
mutation entry to that effect is torn out and
there is no any such entry. Admittedly the
Betta lands are Government lands and are to
be allotted for the better cultivation of
gardeners. But as discussed by me herein
above, there are no documents on record to
show that whether the malki lands of the
plaintiffs are garden lands or not. Hence, the
defendants have clearly proved that the
impugned judgment of the trial Court is not
based on proper appreciation of the evidence
available on record and the principles of law
applicable to the case on hand. The defendants
have made out sufficient ground to interfere
with the impugned judgment and decree by
this Court in this appeal. Therefore, the
impugned judgment and decree calls for
interference at the hands of this Court in this
appeal. The grounds urged by the defendants
in this appeal merit consideration, law and on
facts of the case. Hence, the impugned
judgment and decree of the trial Court is not
sustainable and same is liable to be reversed.
With regard to I.A. No.V is concerned, this suit
is filed by the plaintiffs for mere injunction.
Admittedly, the rights of the parties in the suit
property is not decided in this matter. In the
circumstances, I am of the opinion that the
Will sought to be produced by the appellant
No.1(a) under I.A. No.V is not helpful for the
just decision of the suit. Hence, I.A. No.V filed
by the appellant No.1(a) is liable to be
rejected. Accordingly, I answer the points No.1
and 3 under consideration in the affirmative
and issue No.2 in the negative."
14. Sri.V.G.Bhat, learned counsel for appellants
submitted that plaintiffs had filed suit for permanent
injunction against defendants from interfering with their
peaceful and occupation of suit land. Suit claim was
based on fact that suit land was assigned to land
belonging to plaintiffs for its better cultivation. In order
to establish assignment, plaintiffs not only produced
record of rights indicating such assignment, but also
established it by calling upon jurisdictional Tahasildar to
produce mutation entry register maintained. Relevant
revenue entry namely M.E. No.497 though was partially
torn, contents of remaining portion duly corroborated
plaintiffs' version. Appreciating same, trial Court had
rightly decreed suit. However, first Appellate Court on a
cursory consideration without proper analysis of
evidence reversed findings. Main reason assigned for
reversing judgment of trial Court is stated that
impugned judgment of trial Court was not based on
proper appreciation of evidence available on record and
principles of law applicable thereto. Same being
contrary to law called for interference.
15. It was submitted that first Appellate Court
exceeded its jurisdiction in interfering with finding of
trial Court. It was further submitted that order of Land
Tribunal granting occupancy rights in favour of
plaintiffs' father in respect of Sy. No.37 was neither set
aside nor challenged by defendants.
16. In the light of above submissions, learned
counsel proposed following substantial questions of law
for consideration in this appeal.
"a) Whether the I Appellate Court is correct in
interfering in the judgment and decree passed by
the Trial Court?
b) Whether the I Appellate Court is correct in holding
that since the original mutation register is torn, the
mutation entry is not proved even though the said
entry is carried out and mutated in record of rights
relating to suit property?"
17. On the other hand, Sri Shivaraj S. Balloli,
learned counsel for respondent No.2(a) and
Sri.Shashank S. Hegde, learned counsel for respondent
No.3 sought to support impugned judgment and decree.
It was firstly submitted that only evidence led to
substantiate plaintiffs' claim was production of Mutation
Entry No.497 as Ex.P16(a). Though there was attempt
to establish same by examining jurisdictional Tahasildar
as PW2, he stated that based on available record, he
was not in a position to state survey numbers of lands
to which it pertained. As custodian of mutation register
was unable to state above, appellate Court had rightly
interfered with conclusions and dismissed suit.
18. Learned counsel further submitted that
plaintiffs utterly failed to establish any basis for
effecting M.E. No.497. Both PW1 and PW2 admitted that
they were not aware about basis on which Ex.P16(a)
was effected. Such being the case, trial Court ought not
to have decreed suit and appellate Court rightly
interfered with same.
19. Learned counsel further submitted that even if
it be assumed for sake of argument that, plaintiff was
having some rights over suit property, nature and intent
of prayer sought were for exercise of ownership rights.
Noticing same, appellate Court had allowed appeal and
set aside judgment and decree.
20. On above grounds, learned counsel sought for
dismissal of appeal.
21. Though appellate Court has taken note of
evidence on record, it appears to have been misled
itself assuming that mutation entry No.497 is torn out
from register completely. Appellate Court took note of
mutation entries produced by defendants showing
manner of acquisition of ownership rights by defendant
No.1 and mutations effected in pursuance of sale deeds.
However, fact that plaintiffs' father was granted
occupancy rights in respect of Sy. No.37 as per Ex.P5
has not been taken note of. The fact that remaining
portion of Ex.P16(a) - mutation entry 497, clearly
mentioned suit land was assigned as betta land to land
bearing Sy. No.37 Hissa 1 and 2 has not been
considered and noted in proper perspective.
22. The first appellate Court also ignored
corresponding entries in record of rights about
assignment of betta rights over suit schedule property.
Though respondents disputed them on the ground that
there was no basis for such entry, these entries have
remained unchallenged till date. As long as entries
remain on record, they would attract presumption and it
would not be available for respondents-defendants to
question same without establishing that entries were
either illegal or fraudulent.
23. It is settled law that mere possibility by
appellate Court for taking a different view than trial
Court would not justify in reversing findings of trial
Court. In Prabhakara v. Basavaraj K., reported in
(2022) 1 SCC 115, Hon'ble Supreme Court has held as
follows:
"22. The first appellate court while
exercising power under Section 96 can re-do
the exercise of the trial court. However, such a
power is expected to be exercised with
caution. The reason being, the trial court alone
has the pleasure of seeing the demeanour of
the witness. Therefore, it has got its own
advantage in assessing the statement of the
witnesses which may not be available to the
appellate court. In exercising such a power,
the appellate court has to keep in mind the
views of the trial court. If it finds that the trial
court is wrong, its decision should be on the
reasoning given. A mere substitution of views,
without discussing the findings of the trial
court, by the appellate court is not
permissible. If two views are possible, it would
only be appropriate to go with the view
expressed by the trial court. While adopting
reasoning in support of its findings, the
appellate court is not expected to go on moral
grounds alone."
24. In the case of Smt.Vimala Devi V/s Jang
Bahadur, reported in AIR 1977 Rajasthan 196, it is
held as follows:
"11. In the light of the above
observations, I have now to see whether it was
open to the learned District Judge to interfere
with the order of the learned trial Court it is
well settled that the grant of temporary
injunction is a discretionary order and the
decision of the first Court could not be easily
interfered with by the appellate Court
vide Musa v. Badri Prasad (1). The mere
possibility of the appellate Court coming
to a different conclusion on the same facts
and evidence will also not justify
interference vide Wazir Sunder
Singh v. Musammat Farida Khanam (2).
Another well established principle while
disposing of the application under Order 39
Rules 1 and 2 C.P.C. is that when the Court
while dealing with the case for grant of
temporary injunction decides the question of
prima facie case, it should apply its judicial
mind to the materials which are placed on the
record and if it does not do so then it commits
illegality in the exercise of jurisdiction and in
that case the High Court is competent to
interfere in revision in such a case
vide Musa v. Badri Prasad (supra). The view
taken in Musa v. Badri Prasad (supra) has
been followed by Kan Singh, J. in Girdhari
Lal v. Mahadevi Sharma (3). It has been held
in this case that the appellate Court
should be slow in upsetting a decision of a
trial Court in a matter relating to grant of
temporary injunction unless the decision
of the trial Court is arbitrary, perverse or
is not based on sound legal principles. It
has been further observed in that case that
when the appellate Court does not apply its
judicial mind on all the materials brought on
the record then in that case the approach of
an appellate Court would be wrong and
contrary to the well established principles laid
down by the High Court, more so when the
appellate Court does not deal with the
reasoning that has prevailed with the trial
Court and further when it does not apply its
judicial mind on the materials placed on the
record."
Emphasis supplied
25. In the case on hand, appellate Court has
arrived at a different conclusion than trial Court without
re-appreciation of entire evidence on record. Contrary
to presumption in law available to entries in revenue
records under Section 133 of Land Revenue Act, and in
the absence of evidence led by defendants to overturn
the presumption, the appellate Court has held that trial
Court relied mainly on mutation entries. Its conclusions
indicate an attempt to go beyond the mutation entries,
without evidence and therefore without any justification.
Especially so when defendants have not questioned
validity of the mutation entries. Even its observation
that the fact whether plaintiff was owner of land bearing
Sy.No.37 would be irrelevant without plaintiffs
establishing that the said land was bagayat land. The
power to re-appreciate evidence would not justify
reversal of findings without recording finding that
conclusions were either capricious or perverse.
Therefore, impugned judgment and decree passed by
first appellate Court would be unsustainable. Substantial
questions of law framed for consideration are answered
in favour of appellants. Hence, I pass following:
ORDER
Appeal is allowed. The impugned
judgment and decree dated 02.04.2012
passed in R.A.No.344/2001 by Senior Civil
Judge, Honnavar is set aside. The judgment
and decree dated 06.12.2000 passed by Addl.
Civil Judge (Jr.Dn.), Honnavar is restored.
Sd/-
JUDGE
Rsh / CLK
