Sri Venkategowda vs Basavegowda Since Dead By His Lrs
2022 Latest Caselaw 5410 Kant

                            1




     IN THE HIGH COURT OF KARNATAKA AT BENGALURU

        DATED THIS THE 25TH DAY OF MARCH, 2022

                        BEFORE

          THE HON'BLE MR. JUSTICE R. NATARAJ

     REGULAR SECOND APPEAL NO.1376 OF 2012 (DEC)


BETWEEN:

1.     SRI. VENKATEGOWDA,
       S/O JAVAREGOWDA,
       MAJOR,

2.     SMT. HANUMAMMA,
       W/O HONNEGOWDA,
       MAJOR,

3.     SMT. JAYAMMA,
       W/O HIRANAIAH,
       MAJOR,

4.     SRI. KUMARA,
       S/O HIRANAIAH,
       MAJOR

       ALL ARE R/A RAMENAHALLI VILLAGE,
       KASABA HOBLI, ARKALGUD TQ.,
       HASSAN DISTRICT - 573 102.
                                          ... APPELLANTS
(BY SRI.H.JAYAKARA SHETTY, ADVOCATE)


AND:

BASAVEGOWDA SINCE DEAD BY HIS LRS
                         2




1.   SMT. A. DYAVAMMA,
     W/O LATE BASAVEGOWDA,
     AGED ABOUT 55 YEARS,

2.   SRI. GANGARAJA,
     S/O LATE BASAVEGOWDA,
     AGED ABOUT 40 YEARS,

3.   SRI. RUDREGOWDA,
     S/O LATE BASAVEGOWDA,
     AGED ABOUT 38 YEARS,

     R1(a TO c) ARE RESIDING AT
     HULEVALA VILLAGE, KASABA HOBLI,
     ARKALGUD TALUK,
     HASSAN DISTRICT - 573 102.

4.   SMT. MANJULA,
     MAJOR,
     W/O LOKESHA,
     NAYAKARAHALLI VILLAGE,
     HASSAN - 573 201.

5.   SMT. RUKMINI,
     MAJOR,
     D/O BASAVEGOWDA,
     RESIDING AT HULEVALA VILLAGE,
     KASABA HOBLI, ARKALGUD TALUK,
     HASSAN DISTRICT - 573 102.

6.   SMT. RADHA,
     MAJOR,
     W/O MAHESH,
     RESIDING AT HULEVALA VILLAGE,
     KASABA HOBLI, ARKALGUD TALUK,
     HASSAN DISTRICT - 573 102.
                                    ...RESPONDENTS
(BY SRI.PRASANNA V.R., ADVOCATE FOR R1 TO R6)
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      THIS REGULAR SECOND APPEAL IS FILED UNDER
SECTION 100 OF CPC AGAINST THE JUDGMENT & DECREE
DATED 9.3.2012 PASSED IN R.A.NO.379/2008 (OLD
NO.59/2006) ON THE FILE OF SENIOR CIVIL JUDGE AND
J.M.F.C., ARKALGUD, DISMISSING THE APPEAL AND
CONFIRMING THE JUDGMENT AND DECREE DATED
25.2.2006 PASSED IN OS.NO.162/2003 ON THE FILE OF
CIVIL JUDGE (JR.DN.), JMFC, ARKALGUD.

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

                       JUDGMENT

This appeal is filed by the defendants in

O.S.No.162/2003 challenging the concurrent finding of fact

by both the Courts decreeing the suit for declaration and

injunction.

2. The parties shall henceforth be referred to as

they were arrayed before the trial Court.

3. The suit in O.S.No.162/2003 was filed for

declaration and perpetual injunction, contending that the

suit property was granted to the plaintiff on 15.10.1980 by

the Special Land Acquisition Officer, Hemavathi Reservoir

Project, Hassan. The plaintiff claimed that the revenue

records were transferred to his name and that he was in

possession and cultivation of the said land. He contended

that the defendants though having no manner of right, title

or interest in the said property, attempted to interfere with

the possession of the plaintiff which compelled him to file

O.S.No.229/1998 for perpetual injunction. The plaintiff

withdrew the suit as the defendants had stopped

interference with his possession. However, the defendants

again escalated their interference by denying the title of

the plaintiff to the suit property, which compelled the

plaintiff to file a suit for declaration and injunction.

4. The defendant No.3 contested the suit by filing

his written statement and contended that the land bearing

Sy.No.1/2 measuring 1 acre 33 guntas and Sy.No.1/1

measuring 1 acre 25 guntas were granted to the defendant

Nos.1 and 2 respectively by the State Government and

that they were in possession and enjoyment of the same.

The defendant No.3 claimed that the plaintiff had no right,

title or interest over the suit property and hence, sought

for dismissal of the suit. Defendant Nos.1, 2 and 4 have

filed a memo adopting the written statement filed by

defendant No.3.

5. Based on these rival contentions, the trial

Court framed the following issues:

"(i) Whether the plaintiff proves that he is the absolute owner of the suit schedule property?

(ii) Whether the plaintiff proves that he is in lawful possession over the suit schedule property?

(iii) Whether the plaintiff proves the interference by the defendants?

(iv) Whether the plaintiff is entitled for declaration and permanent injunction?

(v) What order of Decree?"

6. The power of attorney of the plaintiff was

examined as PW.1. He marked documents as Exs.P1 to

P11. Defendant No.3 was examined as DW.1, who marked

the documents as Exs.D1 to D12. The Tahsildar, Arkalgud

was examined as DW.2, who marked the documents as

Exs.C1, C1 (a) to (f) and three witnesses namely DWs.3, 4

and 5, were examined.

7. Based on the oral and documentary evidence,

the trial Court held that the grant in favour of the plaintiff

was prior to the grant in favour of the defendant Nos.1 and

2. It also noticed that a saguvali slip was issued on

04.12.1985. The plaintiff was called upon to pay the upset

price on 25.10.1980 and thereafter, the name of the

plaintiff was entered in the revenue records pursuant to

the acceptance of mutation proceedings in M.R.No.4/1985-

86. Consequently, the name of the plaintiff was entered in

the revenue records from the year 1987-88. It also found

that the grant in favour of defendant Nos.1 and 2 was on

18.06.1982 and the saguvali slip was issued on

10.01.1985 and their names was entered in the revenue

records pursuant to the M.R.No.9/1985-86 and

corresponding revenue entries were brought about in the

year 1996-97. The trial Court held that the plaintiff is in

possession of the suit property as the grantee and

therefore, the same land could not have been granted to

defendant Nos.1 and 2. Hence, the trial Court decreed the

suit.

8. Being aggrieved by the aforesaid judgment and

decree, the defendant filed R.A.No.379/2008. The First

Appellate Court secured the records of the trial Court,

heard the learned counsel for the parties and framed the

following points for consideration:

"(i) Whether the Appellants/defendants proves that the impugned judgment and decree dated 25.2.2006 passed in O.S No.162/2003 by the trial court in decreeing of the suit, is contrary to law, facts, evidence and probabilities of the case and as such, it is liable to be interfered with ?

(ii) What order?"

9. The First Appellate Court held that as per

Exs.P1 and P2, the suit land was granted to the plaintiff

and his name was entered in the revenue records as per

Ex.P4. It held that the defendants did not place on record

any material evidence to prove that the grant of land in

favour of the plaintiff was cancelled or revised. It held that

the records produced by the defendants indicated that

defendant Nos.1 and 2 were subsequent grantees and

therefore, they failed to prove that they were in possession

of the suit schedule property. It also noted that as per

Exs.P10 and 11, the defendant Nos.1 and 2 had filed

O.S.No.105/1999 for perpetual injunction against the

plaintiff and his son, where, an application filed by them

for interim injunction was rejected and the same was

confirmed by the Appellate Court in M.A.No.39/1999. The

First Appellate Court therefore held that the trial Court had

rightly decreed the suit based on acceptable oral and

documentary evidence.

10. Being aggrieved by the aforesaid judgment and

decree, the present second appeal is filed by the

defendants in the suit.

11. Learned counsel for the defendants submitted

that the defendants were in possession of the suit schedule

property as the plaintiff was never a resident of the village.

He submitted that the evidence of independent witnesses

namely DWs.3, 4 and 5 supported his claim that he was in

possession of the suit schedule property. He also

submitted that defendant Nos.3 and 4 have constructed a

house and they have also sunk a bore well in the suit

property and he has demonstrated that they were in

possession of the suit schedule property.

12. Per contra, learned counsel for the plaintiff

submitted that the defendants could never claim to be in

possession of the suit property in view of the fact that it

was granted to the plaintiff prior to the grant in favour of

the defendant Nos.1 and 2. He submitted that since both

the parties were claiming right, title and interest in respect

of the suit property under corresponding orders of grant, it

is the prior grant that alone has a precedence over the

subsequent grant.

13. I have considered the submissions made by

the learned counsel for the parties and also perused the

records of the trial Court as well as the judgment and

decree of the trial Court and the First Appellate Court and

also perused the grounds of appeal urged by the learned

counsel for the defendants.

14. A perusal of the documents placed on record

indicate that the plaintiff was granted the land in question

under a re-habilitation programme by the Special Land

Acquisition Officer-Hemavathi Reservoir Project. The

plaintiff was called upon to pay the upset price of Rs.570/-

and podi fees of Rs.25/- and land revenue of Rs.18.65/-.

Whereupon the plaintiff was granted his saguvali slip and

his name was entered in the revenue records as per Ex.P4,

P5 and P7. Ex.P8 is the sketch prepared by the Special

Land Acquisition Officer indicating the location of the suit

property that was granted to the plaintiff.

15. Per contra, the documents produced by the

defendants indicate that defendant Nos.1 and 2 are

granted the land on 18.06.1982 as per Ex.D1 and D2 and

Saguvali Certificates were issued on 10.01.1985. The

names of the defendants Nos.1 and 2 were entered in the

revenue records. Though defendant Nos.1 and 2 contend

that they are in possession of the suit property, except the

aforesaid documents, they have not even furnished the

photographs of the property to establish that the

defendant No.2 and 4 had constructed a house on the

property or that they sunk a bore well in the suit property.

The defendants have not made any effort to prove the

aforesaid fact. If the defendants claimed that they were in

possession of this property, prior to the same being

granted to the plaintiff, they were bound to question the

grant made in favour of the plaintiff. If they have not done

so, they cannot raise any objections to the exercise of

right by the plaintiff in respect of the suit schedule

property. In that view of the matter, the trial Court and

the First Appellate Court have considered the oral and

documentary evidence and have held that the plaintiff is

the lawful owner of the suit schedule property and he is

entitled to protect his possession against the interference

by the defendants. Since, the finding recorded by both the

Courts is based on acceptable oral and documentary

evidence, this Court does not consider it appropriate to

disturb these findings.

16. As no substantial question of law arises for

consideration in this appeal, it is dismissed.

Dismissal of this appeal will not come in the way of

the defendants challenging the grant made in favour of the

plaintiff in accordance with law. However, this is subject to

the law of limitation.

Sd/-

JUDGE

NR/-