Sri Thimmegowda S/O ... vs Hanumanthaiah S/O Malagappa
2022 Latest Caselaw 4806 Kant

                             1




     IN THE HIGH COURT OF KARNATAKA AT BENGALURU

        DATED THIS THE 15TH DAY OF MARCH 2022

                        BEFORE

 THE HON'BLE MR. JUSTICE SACHIN SHANKAR MAGADUM

          REGULAR FIRST APPEAL No.591/2006

BETWEEN :

SRI THIMMEGOWDA
SON OF VENKATARAMANAPPA
AGED ABOUT 60 YEARS
RESIDING AT VADDARAHALLI
DASANAPURA HOBLI
BANGALORE DISTRICT - 560 057.
                                           ... APPELLANT

(BY SRI P.M. SIDDAMALLAPPA, ADVOCATE)

AND :

1.    HANUMANTHAIAH,
      SON OF MALAGAPPA
      AGED ABOUT 40 YEARS.

2.    SMT. LAKSHMAMMA
      WIFE OF NARASIMHAIAH
      AGED ABOUT 35 YEARS.

      BOTH ARE RESIDING AT
      VADDARAHALLI VILLAGE
      DASANAPURA HOBLI
      BANGALORE NORTH TALUK - 560 057.
                                         ... RESPONDENTS

(BY SRI UDAYA KUMAR, ADVOCATE FOR R2;
R1 IS DEAD LR'S OF R1 REJECTED)
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     THIS REGULAR FIRST APPEAL IS FILED UNDER ORDER
41, RULE 1 READ WITH SECTION 96 OF CIVIL PROCEDURE
CODE, PRAYING TO CALL FOR RECORDS IN O.S. 745/1996
ON THE FILE OF THE LEARNED PRINCIPAL CIVIL JUDGE
(SENIOR DIVISION), BANGALORE RURAL DISTRICT,
BANGALORE AND TO SET ASIDE THE IMPUGNED JUDGMENT
DATED 09.12.2005 PASSED IN O.S. 745/1996, BY THE
LEARNED PRINCIPAL CIVIL JUDGE (SENIOR DIVISION),
BANGALORE RURAL DISTRICT, BANGALORE AND TO
DECREE THE SUIT OF THE PLAINTIFF/APPELLANT AS
PRAYED FOR BY ALLOWING THE ABOVE APPEAL WITH
EXEMPLARY COSTS, IN THE INTEREST OF JUSTICE AND
EQUITY.

    THIS REGULAR FIRST APPEAL COMING ON FOR
HEARING THIS DAY, THE COURT, DELIVERED THE
FOLLOWING:

                        JUDGMENT

The captioned Regular First Appeal is filed by the

unsuccessful plaintiff in O.S.No.745/1996 wherein the trial

Court has dismissed the suit filed by the appellant herein

seeking the relief of declaration and permanent injunction.

2. For the sake of convenience, the parties are

referred to with reference to their rank before the Trial

Court.

3. The subject matter of the suit is an agricultural

land bearing Sy.No.15 totally measuring 16 Guntas. The

plaintiff claims that he is the absolute owner of the suit land

having purchased the same under registered Sale Deed

dated 23.10.1967 from one Narasamma and Gali

Hanumakka. Based on this title document, the plaintiff

claims that he is in peaceful possession and enjoyment of

the plaint schedule property from the date of purchase.

The plaintiff also claims that he is growing Ragi, Jowar and

other crops and is in peaceful possession of the suit land

without interference from anybody. The plaintiff claims that

the defendants have no substantial right, title or interest

whatsoever over the suit land. At Para 6 of the plaint, the

plaintiff has pleaded that defendants without semblance of

right or title are trying to interfere with the plaintiffs

possession and enjoyment of the suit land and are trying to

knock off the property. At Para 7 of the plaint, the plaintiff

has specifically pleaded that on 13.09.1996 at about 9.00

a.m., the defendants with their agents, servants and

henchmen came near the suit property and threatened the

plaintiff with dire consequences and also tried to dispossess

the plaintiff from the suit property. Similar attempt was

also made on 15.09.1996 at about 12.00 p.m. The plaintiff

claims that he immediately lodged a complaint with the

jurisdictional police regarding the illegal acts of the

defendants. However, the police advised that since the

controversy involves civil dispute, the plaintiff was directed

to approach the competent civil court. The cause of action

on account of incident arose on 13.09.1996 and

15.09.1996.

4. Based on this set of pleadings, the plaintiff has

filed the present suit seeking the relief of declaration to

declare the plaintiff as the absolute owner of plaint schedule

property and consequently grant perpetual injunction

restraining the defendants, their agents, servants or

anybody else acting on behalf of the defendants from

interfering with the peaceful possession and enjoyment of

the plaint schedule property.

5. On receipt of summons, the defendants entered

appearance and stoutly denied the entire averments made

in the plaint. The defendants while denying the title have

contended that the suit land is a Toti and Talawari Inam

land and the defendants' ancestors were holders of the suit

land. The defendants further contended that they had

applied for re-grant jointly and the competent authority by

order dated 29.12.1984 has re-granted the suit land to

defendants 1 and 2 jointly and therefore claimed exclusive

right, title over the suit property. The defendants also claim

that they are in exclusive possession and therefore sought

for dismissal of the suit.

6. The trial court based on the rival contentions has

framed the following issues for consideration:

i) Whether the plaintiff proves that he is the absolute owner in possession and enjoyment of the suit schedule property ?

ii) Whether the defendants prove that the suit schedule property was regranted in favour of their family members and they are in possession and enjoyment as owners ?

iii) Whether the interference alleged is true ?

iv) Whether the valuation of the suit schedule property is proper and court fee paid is correct ?

v) Is the plaintiff entitled to declaration ?

vi) Is the plaintiff entitled to permanent injunction ?

vii) What Order ?

7. The plaintiff got examined himself as PW.2 and

examined PW's.1, 3 and 4 as independent witnesses. The

plaintiff in support of his contention has relied on the

registered Sale Deed executed by one Narasamma and

Gali Hanumakka marked as Ex.P2.

8. The second defendant examined herself as DW.1

and the defendants got marked the documents as per Ex.D1

to D28.

9. The trial court having assessed oral and

documentary evidence, answered issue no.1 in the negative

by holding that the plaintiff has failed to prove that he is the

absolute owner and in exclusive possession and enjoyment

of the suit schedule property. While answering issue no.2 in

the affirmative, the trial court has held that the suit

schedule property was regranted in favour of the

defendants family members and therefore, they are in

lawful possession and enjoyment of the suit property.

Having answered issue No.1 in the negative, the trial court

has answered issue no.5 in the negative and held that

plaintiff is not entitled for declaration of title. On these set

of reasonings, the trial court has dismissed the suit. It is

against dismissal of the suit, the plaintiff is before this

court.

10. Learned counsel appearing on behalf of the

appellant/plaintiff placing reliance on Ex.P2 which is a

registered sale deed executed by the holders of the suit

land namely Narasamma and Gali Hanumakka claims that

the plaintiff has valid right, title and interest over the suit

land. Placing reliance on Ex.P2, the learned counsel would

submit to this court that in regrant proceedings, his vendors

were also parties and therefore would contend and submit

to this court that in light of Full Bench judgment of this

court in case of Syed Bhasheer Ahamed and Others v.

State of Karnataka and others reported in 1994 (1) KLJ

385 'alienation of service imams land during the period

01.02.1963 to 07.08.1978 is valid' and therefore would

contend that the plaintiff has acquired valid right, title and

the same is not at all challenged till this date.

11. The learned counsel further vehemently argued

and contended before this court that the plaintiff having

acquired title pursuant to registered sale deed was put in

possession by his vendors and therefore, the plaintiff is

entitled to protect his possession. To buttress his argument,

he draws attention of this court to the provisions of the

Karnataka Village Office Abolition Act, 1961 ("the Act", for

short) and basing his claim in terms of Section 7 of the Act,

he would contend that even otherwise, any possession of

unauthorised holder is to be protected unless it is effected

by the competent authority in accordance with law.

Therefore, he would contend that even otherwise, the trial

court erred in not granting the consequential relief of

injunction having negatived the relief of declaration in

favour of the plaintiff. On these set of grounds, he

submitted that the judgment of the trial court is erroneous

and warrants interference by this court.

12. Heard the learned counsel appearing for the

plaintiff and perused the trial court records and Paper Book.

     13.   The     following     points    would    arise   for

consideration:-

1) Whether the trial court was justified in holding that the

plaintiff has failed to prove that he is the absolute owner in

possession and enjoyment of the suit property?

2) Whether the trial court was justified in not granting

perpetual injunction in favour of the plaintiff ?

3) Whether the trial court was justified in declaring that

defendants are the owners of suit land pursuant to regrant

order passed in their favour ?

Findings on Issue No.1 and 2 :

14. The entire claim of the plaintiff is based on the

registered sale deed dated 23.10.1967. The plaintiff claims

that he has purchased the suit land under the registered

sale deed dated 23.10.1967 from one Narasamma and Gali

Hanumakka. At para 6 of the plaint, the plaintiff has

averred that the defendants have no semblance of right and

title over the suit property.

15. On perusal of the averments made, this court

would find that the plaintiff has not laid foundation in regard

to his vendors right and title over the suit property. Though

plaintiff asserts that he acquired title from one Narasamma

and Gali Hanumakka however, there is no mention in the

plaint regarding the source under which his vendors

acquired right and title over the suit property. All that is

stated in the plaint is that the plaintiff has purchased the

suit land from one Narasamma and Gali Hanumakka.

Basing his claim on the registered sale deed dated

23.10.1967, the plaintiff also asserts that he is in

possession of the suit land.

16. On perusal of the records, this court finds that

except the sale deed, the plaintiff has not at all adduced

any documentary evidence to establish that plaintiff's

vendors had any right and title in the suit land.

17. On the contrary, the defendants have placed on

record the regrant order passed by the competent authority

dated 29.12.1984. As per the regrant order, the

defendants have succeeded in establishing that their

ancestors were the holders of suit land. The first

defendant's father and mother were jointly regranted

8 Guntas of land each. In the regrant order, the competent

authority has apportioned suit land bearing Sy.No.15 in two

parts and regrant order is in favour of first defendant's

father and mother to an extent of 8 Guntas each. On

perusal of the regrant order, this court also finds that there

is reference to the applicants 4 and 5 namely Narasamma,

W/o Maligappa and Gali Hanumakka, W/o Muninarasaiah.

The competent authority has taken note of the fact that

applicant no.5 Gali Hanumakka representing the third

branch is not alive and has not left any legal heirs behind

her and has proceeded to divide the land between the

surviving members of the first and second heads of the

original office holders. The plaintiff is asserting his right by

virtue of the sale deed executed by one Narasamma and

Gali Hanumakka. Though Narasamma is arrayed as

applicant no.4 in the regrant order however, the authority

has not referred to the rights of applicant no.4 in the said

order.

18. If rebuttal evidence is taken into consideration,

then I am of the view that plaintiff cannot claim his right

and title over the suit property and therefore, the finding

recorded by the court below on Issue No.1 which relates to

the title of the plaintiff appears to be correct and the same

is based on rebuttal legal evidence led by the defendants.

The plaintiff except placing reliance on the registered Sale

Deed dated 23.10.1967 executed from one Narasamma and

Gali Hanumakka has not produced any document to indicate

that he is in possession of the suit land.

19. On the contrary, the defendants have produced

clinching rebuttal evidence to indicate that they have valid

right and right over the suit lands. By way of rebuttal

evidence, defendants have not only produced the regrant

order copy, but also produced the tax paid receipts,

mutation copy and pahani copies to indicate that they are in

possession of the suit property. Ex.P2- Sale Deed on which

the plaintiff places reliance cannot be sufficient to decide as

to whether plaintiff was in actual possession of the suit

land.

20. Though the learned counsel appearing on behalf

of the appellant/plaintiff has strenuously argued and has

made an attempt to point out to this court that plaintiff is in

possession and therefore his unauthorised possession needs

to be protected in terms of Section 7 of Karnataka Village

Office Abolition Act, 1961, I am of the view that the said

contention cannot be accepted to claim benefit under

Section 7 of the Act. The said contentions are not

specifically pleaded in the plaint and the same is not at all

corroborated specifically as to when plaintiff was put in

possession. It is only after the plaintiff establishes his

possession, the question as to whether he is the

unauthorised holder and needs protection under Section 7

of the Act would arise for consideration by this court. Since

rebuttal evidence clearly indicates that defendants are in

exclusive possession of the suit property, the question of

considering posssessionary rights of the plaintiff under

Section 7 of the Act would not arise. In that view of the

matter, point no.1 and 2 are accordingly answered in the

affirmative.

Finding on Point No.3

21. The defendants by way of rebuttal evidence to

corroborate their claim in terms of issue no.2 have led

evidence and have produced regrant order and have also

produced mutation copies, tax paid receipts as per Ex.D3 to

D28. On perusal of Ex.D1, this court would find that the

father and mother of defendant no.1 namely Malligappa and

Lakshmamma W/o Malligappa were jointly regranted

Sy.No.15. It would be relevant for this court to cull out the

operative portion of Ex.D1 which reads as hereunder.

" In the circumstances, I regrant the service Inam lands attached to the talwari office of Vaddarahally village as per the provisions of Section 5 of the K.V.O.A. Act, 1961 to the applicants and other holders and apportion the same among them as per the geneological tree as hereunder:

Name of the Grantee                 S.No.          Extent
and Village                                     Acre/Guntas

I    Muniyappa, S/o Lingappa           1               0.07 1/2
     Vaddarahally

     Maligappa,          Jointly
     S/o Lingappa                     15               0.08

     Narasimahaiah
     S/o Karenarasappa                31               3.15 1/2

II   Munikrishnappa
     Adopted son of Muniningappa        1              0.07 1/2
     Vaddarahally

     Lakshmamma           Jointly      15              0.08
     W/o Maligappa
                                       31              4.15 1/2

This order of regrant of service Inam lands is subject to the condition that these lands should not be alienated for a period of 15 years from 7.8.1978."

22. If the operative portion of the regrant order is

looked into coupled with subsequent documents viz.,

mutation extract, record of rights as well as tax paid

receipts, it is clearly evident that the father and mother of

defendant no.1 became the absolute owners pursuant to the

regrant order. Therefore, the clinching rebuttal evidence

adduced by the defendants would clearly indicate that the

defendants have proved that their ancestors were holders of

land and they had applied for regrant order and the

competent authority on enquiry has proceeded to regrant

the suit land and also other lands in favour of the

defendants family. The clinching rebuttal evidence also

indicates that the defendants are in possession of the Inam

lands which were subsequently regranted in favour of their

ancestors. Therefore, I am of the view that defendants are

the owners of suit land pursuant to the regrant order and

therefore, the plaintiff cannot claim absolute right and title

over the suit lands. Therefore, point no.3 is answered in

the affirmative.

23. Having answered Issue nos.1 and 2 in the

affirmative, this court would also concur with the finding of

the trial court while dealing with other issues. The trial

court while dismissing the suit has however recorded a

finding that the plaintiff would get some limited right

through his vendors who are also stated to be the holder of

suit land and therefore, he is entitled to seek partition and

separate possession in case he is entitled for the same.

Ex.D1 clearly indicates that one of the vendors of the

plaintiff namely Gali Hanumanna is shown to be

representing the third branch and now her claim is not

decided by the authority as she passed away during the

pendency of proceedings and therefore, the authority has

apportioned the share of applicant no.5 namely Gali

Hanumakka between the defendants ancestors. Therefore,

if this portion of the regrant order is taken into

consideration, then I am of the view that the plaintiff cannot

assert absolute right over the entire extent of land but he

may lay claim in respect of share of Gali Hanumakka in the

suit land and seek partition and separate possession based

on registered sale deed dated 23.10.1967 which was

executed by Gali Hanumakka along with Narasamma.

However, though Narasamma is shown as applicant no.4,

there is no regrant order in favour of Narasamma. Her

claim is rejected by the authority. However, this would not

prevent the plaintiff in claiming the share of Gali

Hanumakka who has executed the sale deed on 23.10.1967

in favour of the plaintiff.

24. It is in this background, this court is of the view

that plaintiff cannot maintain the present suit. The regrant

order issued in favour of the father and mother of defendant

no.1 would enure to the benefit of Gali Hanumakka who has

pre-existing right. Consequently plaintiff is entitled for

partition. Therefore, based on legal evidence, the judgment

passed by the trial court does not suffer from any

illegalities. Accordingly, the appeal is dismissed.

25. This appeal has to be rejected also taking note of

the order dated 02.07.2014 wherein the applications

(I.A.1/2014 to I.A.-3/2014) were dismissed. The appeal

was dismissed against the first respondent as the appellant

failed to bring the legal representatives of deceased first

respondent on record. Admittedly, the decree is not

divisible. Even on this count, the appeal is dismissed.

Sd/-

JUDGE

Np/-