Bhaskar Rao Bhimarao Desai And Ors vs Bindurao Kristarao Karkun And Ors
2022 Latest Caselaw 11688 Kant

            IN THE HIGH COURT OF KARNATAKA
                    DHARWAD BENCH

       DATED THIS THE 9TH DAY OF SEPTMBER, 2022

                             BEFORE

       THE HON'BLE MR. JUSTICE H.P. SANDESH

                      R.F.A.No.690/1998
                             C/W
                    R.F.A.CROB.No.17/1998

R.F.A.NO.690/1998

BETWEEN:

Bhaskar Rao Bhimarao Desai
Since deceased by his LR's

1(a). Seemarani D/o Bhaskar Rao Desai,
      W/o Srinivas Inamdar, Age: 22 years,
      Occ: Household Work and Agriculture,
      R/o: Yakkeri, Tq: Soundatti.

1(b)    Akshata D/o Bhaskar Rao Desai
        Now Akshata W/o Mohanraj Desai,
        Age: 22 Years, Occ: Household work
        R/o Bisankoppa, Tq: Gokak, Dist: Belgavi,

2.      Pandurangarao Basavantrao Desai
        Age: Major Occ: Agriculture
        R/o Pattadakal Tq: Badami.

3.      Shivanand Bhimarao Desai
        Since deceased by his LR's

3(a). Kalavati W/o Shivarao @ Shivanand Desai,
      Age: 45 years, Occ: Household Work
                                   2




        and Agriculrure, R/o: Pattadkal,
        Tq: Badami Dist: Bagalkot
        Now at Kyarkopp Tq: Dharwad Dist: Dharwad
                                              ...Appellants
(By Shri V.M.Sheelvant, Adv. For A1 (a) and (b),
     A2 and A3 (a)

AND:

1.      Bindurao Kristarao Karkun
        Age: Major Occ: Agriculture,
        R/o Pattadkal, Tq: Badami.

2.      Sudhindra Kristarao Karkun
        Age: Major Occ: Agriculture
        R/o Pattadkal, Tq: Badami

2(a)    Smt. Sumnagala W/o Sudhendrarao Mutalikdesai
        Age: 56 years, Occ: Household Work
        R/o: Pattadkal, Tq: Badami, Dist: Bagalkot

2(b). Smt. Jyothi W/o Madhav Bommigatti
      Age: 35 years, Occ: Advocate
      R/o: Pattadkal, Tq: Badami, Dist: Bagalkot

2(c).   Shri. Santosh S/o Sudhendrarao Karakun
        Age: 33 years, Occ: Private Service.
        R/o: Pattadkal, Tq: Badami, Dist: Bagalkot

2(d). Smt. Ravati W/o Raghavendra Kerur
      Age: 29 years, Occ: Household Work
      R/o: Killa Oni, Kerur, Tq: Badami, Dist: Bagalkot

3.      Venkatesh Kristarao Karkun
        Age: Major Occ: Service
        R/o Pattadkal Tq: Badami

4.      Smt. Akkubai W/o Shyamrao Karkun
        Age: Major Occ: Household work
        R/o Pattadkal Tq: Badami
                                    3




5.     Smt. Shobhadevi W/o Bhaskar Rao Desai
       Age: 54 Years Occ: Household work And Agriculture
       R/o Pattadkal Tq: Badami

6.     Raghuveer S/o Bhaskar Rao Desai
       Age: 24 Years Occ: Agriculture
       R/o Pattadkal Tq: Badami.                  ... Respondents

(By Shri K.L.Patil, Adv. for R1 and R2,
    Shri Jayavittal Rao Kolar, Adv. for C/R1 to R4,
    Service of notice to R3 (a to c) is held sufficient,
    R2 is treated as LRs of deceased R4,
    R5 and R6 are served)

      This appeal is filed under Section 96 of the CPC
against the judgment and decree dated 28.08.1998 in
O.S.No.103/94 on the file of the Prl. Civil Judge (Sr.Dn.),
Bagalkot, partly decreeing the suit for declaration of
ownership, possession and injunction.

IN R.F.A.CROB.17/1998

1.     Bindurao Krishnarao Karkun
       Age:Major, Occ: Agriculture,
       R/o Pattadakal, Tq:Badami.

2.     Sudhindra Kristarao Karakun
       Since deceased by LRs

       2(a)   Smt.Sumangala w/o Sudhindra Karkun
              Age;55 years, Occ:Household work,

       2(b)   Smt.Jyothi w/o Madhav Bommigatti
              Age:34 years, Occ:Advocate

       2(c)   Santosh S/o Sudhindra Karnkun
              Age;32 years, Occ:agriculturist.

       2(d)   Revati w/o Ranghavendra Kerur
              Age:28 years, Occ:Household work,
              R/o Kill Street, Post:kerur,
                                 4




              Tq:Badami, Dist:Bagalkot.

3.     Venkatesh Krishtarao karakun
       Since deceased by LRs

       3(a)   Smt.Laxmi
              W/o Venkatesh Mutalikdesai @ Karkun
              Age;53 years, Occ:Household work,
              R/o Pattadakallu, Badami,
              Now at:H No.119, Bhuvaneshwar Nagar
              Keshwapur, Hubballi-Dist:Dharwad.

       3(b)   Priyanka @ Priya
              D/o Venkatesh Mutalikdesai @ Karkun
              Age:26 years, Occ:Homemaker,
              R/o Pattadakallu, Badami,
              Now AT H.No.119, Bhuvaneshwar Nagar
              Keshwapur, Hubballi-Dist:Dharwad.

       3(c)   Pragathi
              D/o Venkatesh Mutalikdesai @ Karkun
              Age:23 years, Occ:Home maker,
              R/o Pattadakallu, Badami,
              Now at:H No.119, Bhuvaneshwar Nagar,
              Keshwapur, Hubballi-Dist:Dharwad.

4.    Smt.Akkubai w/o Shyamrao Karkun,
      Since deceased by legal heir cross objector No.2
                                           ... CROSS OBJECTORS
(By Shri K.L.Patil, Adv. for cross objector No.1 and
      Cross objector No.2 (a) to (d)),

AND:

1.     Baskar Rao Bhimarao Desai
       Since deceased by LRs

       1(a)   Smt.Shobhadevi W/o Baskarrao Desai
              Age:58 years, Occ:Household work,
              R/o Pattadakallu, Badami.
                                  5




      1(b)   Raghuveer S/o Bhaskararao Desai
             Age:30 years, Occ:agriculture,
             R/o Pattadakallu, Badami.

      1(c)   Akshata w/o Mohanraj Desai
             d/o Bhaskarrao Desai
             Age:28 years, Occ:Homemaker,
             R/o Bisankoppa, Tq:Gokak, Dist:Belgavi.

      1(d)   Seemarani w/o Keshav Inamdar
             D/o Bhaskarrao Desai
             Age:26 years, Occ:Homemaker,
             R/o Goravankolla, Tq:Goka,
             Dist:Belagavi.

2.    Pandurangarao Basavantrao Desai,
      Age:Major, Occ:Agriculture,
      R/o Pattadakal, Tq:Badami.

3.    Shivanand Bhimarao Desai
      Since deceased by LRs

      3(a)   Smt.Kalavathi,
             w/o Shivrao Shivanand Desai,
             Age:51 years, Occ:Householdwork,
             R/o Pattadakal, Tq:Badami.
             Dist:Bagalkot,
             Now at Kyarakoppa, Dharwad.
             Dist:Dharwad.                 ... Respondents

(By Shri V.M.Sheelvant, Adv. for R1 (a) to (d), and
          R3 (a))

      This cross objection is filed under Order 41 Rule 22
of CPC against the judgment and decree dated 28.08.1998
in O.S.No.103/1994 on the file of the Prl. Civil Judge
(Sr.Dn.), Bagalkot, partly decreeing the suit for declaration
of ownership, possession and injunction.

      This appeal and the cross objection coming on for
final hearing on 18.08.2022 and the same having been
                               6




heard and reserved for pronouncement of judgment, this
day, the court delivered the following:

                        JUDGMENT

The appeal is filed by the defendants and the cross

objection is filed by the plaintiffs challenging the judgment

and decree in O.S.No.103/1994 dated 28.08.1998 on the

file of the Prl. Civil Judge, Sr. Dn. Bagalkot at Bagalkot,

granting permanent injunction and rejecting the relief of

declaration.

2. For the purpose of convenience, the parties shall be

referred according to their ranks before the trial Court.

3. The factual matrix of the case of the plaintiffs before

the trial Court is that they are the owners in possession of

the suit schedule land bearing R.S.No.53 measuring 13

acres 19 guntas of Nagaral (S.P.) and plaintiff Nos.1 to 3

are joint holders and owner in possession of land bearing

R.S.No.56 measuring 8 acres 4 guntas of Nagaral (S.P.).

The plaintiffs sought for the relief of declaration and

permanent injunction and also for the possession if the

Court comes to the conclusion that if the plaintiffs are not

in possession grant consequential relief of possession.

4. It is their contention that their ancestors names

appeared in the below line column of revenue records

since time immemorial. Hence, they shall be declared as

owners. It is the claim of the plaintiffs that their

predecessors and ancestors have been in lawful possession

and enjoyment of the suit lands and the same has been

recorded in the khatha of record of rights ever since the

time of settlement under the Bombay Land Revenue Act.

The defendants and their ancestors are shown above the

line in the khatha as Inamdaars having the right of share

in the government right of collection of assessment as

alienies from the government. The defendants and

predecessors in title have recognized the right of the

plaintiffs and their predecessors as lawful owners in

enjoyment though they were shown as Inamdaars above

the line and the government also recognized plaintiffs and

their predecessors and ancestors as being lawful owners in

possession paying assessment and are lawful owners

under the Bombay Hereditary Offices (Vatan) Act and ever

since the abolition of the said Bombay Paragana and

Kulkarni Inam Abolition Act, 1950. It is contended that

their rights to be in lawful possession as owner in the

Vatan are not extinguished under the provisions of

Section 3 of the said Bombay Paragana and Kulkarni Inam

Abolition Act, 1950. It is contended that merely because

the defendants' ancestors are shown above the line as

holder of alienated land, they were not entitled to claim

any rights of regrant under Section 4 of the said Act. It is

contended that an illegal order of regrant in favour of

defendants' ancestors do not confer any rights better than

those rights which existed viz-a-viz the plaintiffs and their

ancestors are lawful owners shown below the line under

the system of maintaining revenue records under the

Bombay Revenue Act and Land Revenue Manual. Even the

defendants and ancestors have recognized the plaintiffs

and their ancestors as owners since time out of memory.

The change of any entry in the record of rights are

governed under Section 128 of the present Land Revenue

Act and the plaintiffs' names have been recognized as

holders below the line before the Karnataka Land Revenue

Act. It is contended that the making of the entry and

deleting the names of the plaintiffs from the record of

rights have been challenged in the proceedings in RTS CR

50/91-92 of the Tahsildar and RTSAP No.35/92-93 of the

Assistant Commissioner, Bagalkot. The same are

dismissed and hence W.P.No.15958/1994 was filed by the

plaintiffs before this Court and the same was disposed of

with a direction to the plaintiffs to approach the civil court.

It is contended that the plaintiffs never accepted the

defendants and their predecessors as owners of the lands

and defendants and their predecessors have never

disputed the lawful possession since time out of memory

for more than 100 years and they have perfected their title

by adverse possession. It is contended that on the basis

of the illegal order the defendants are now giving threats

of dispossessing the plaintiffs from lawful possession of the

suit schedule land. Hence, the plaintiffs are constrained to

institute the suit for a declaration of their ownership and

lawful possession of the suit schedule lands and

consequential perpetual injunction restraining the

defendants from disturbing the plaintiff's peaceful

possession.

5. In pursuance of the suit summons, defendant No.1

appeared and filed the written statement and defendants 2

and 3 adopted the written statement of defendant No.1.

6. In the written statement they have denied the very

contentions of the plaintiffs claiming the ownership as well

as lawful possession. However, it is admitted that

defendants' and their ancestors' names have been shown

as Inamdaars having right over the suit lands as

Inamdaars as per the provisions of the Bombay Paragana

and Kulkarni (Watan) Act, and Bombay Hereditary Offices

Act. They also denied the very possession of the plaintiffs

in respect of the suit schedule land. It is contended that

the interpretation of Sections 3 and 4 of the Bombay

Paragana and Kulkarni Watan Abolition Act made by the

plaintiffs is completely wrong and misconceived and the

very claim of the plaintiffs that their ancestors are lawful

owners shown below the line in the revenue records under

the Bombay Land Revenue Act and Land Revenue Manual

and they are the owners, has been denied. The very

contention that plaintiffs' names have been recognized as

holders below the line before the Karnataka Land Revenue

Act is denied.

7. It is contended in the written statement that one

Raghavendra Ramaji Kulkarni was serving as a clerk under

the defendants' predecessors. Hence, he was allowed to

cultivate the suit land and take their income. He died in

the year 1940. Thereafter, the defendants' predecessors

themselves were personally cultivating the suit land in the

year 1953-54. One Mallappa Fakirappa Sudi and

Devendrappa Fakirappa Dharegol began to cultivate the

suit land. They also died issueless. Thereafter

Shivaputrappa Sangappa Desai and Shankrappa Fakirappa

Sulibhavi of Pattadakal gave an application to the Land

Tribunal, Badami in Form No.7 for granting them

occupancy rights in respect of the suit lands. Their

application was rejected and their names have been

deleted in the record of rights as per order

in No.KLR.LT SR.200, 226 dated 28.11.1960. The

defendants are in possession of the suit lands and are

cultivating them personally. The plaintiffs have never

putforth their claim over the suit land at any time till they

approached the Tahasildar, Badami, by starting RTS

proceedings in the year 1992 and the same was rejected

and even appeal filed by them was dismissed. It is also

contended that the suit of the plaintiffs is also not in time.

The plaintiffs have filed the suit putting forth the false

claim just to harass the defendants and the plaintiffs have

absolutely no cause of action to file the suit.

8. The trial Court having considered the contents of the

plaint and also the written statement framed the following

issues:

i) Whether the plaintiffs prove that they are the lawful owners in possession of the suit schedule land?

ii) Whether the plaintiffs are entitled for permanent injunction against the defendants?

iii) Alternatively, whether the plaintiffs are entitled for possession of the schedule land with mesne profits?

iv) Whether the plaintiffs prove that their right of ownership over the schedule land has been recognized and confirmed by the competent authority under the Bombay Paragana and Kulkarni Watan Abolition Act, so this Court has no jurisdiction to try the suit?

     v)     Whether the defendants prove that the
     plaintiffs suit is time barred?
     vi)    Whether the defendants prove that they

are in possession of the suit schedule land?

9. The plaintiffs in order to prove their case, got

examined one of the plaintiff as PW-1 and got marked

documents Ex.P.1 to Ex.P.40 (b). On the other hand, the

1st defendant got examined himself as DW-1 and got

marked documents Ex.D.1 to Ex.D.17. The trial Court

after considering both oral and documentary evidence vide

impugned judgment dated 28.08.1998 decreed the suit in

part restraining the defendants by a permanent injunction

from interfering into the possession of the plaintiffs over

the suit lands till they are dispossessed in accordance with

law. The claim of the plaintiffs that they are the owners

and declare them as owners. has been rejected. Hence,

the present appeal is filed by the defendants questioning

grant of permanent injunction in favour of the plaintiffs

and the plaintiffs have filed the cross objection questioning

rejection of their prayer for declaration.

10. The defendants/appellants in R.F.A.No.690/1998

have contended that the trial Court erred in decreeing the

suit for permanent injunction mainly on the ground that

the father of the appellants had admitted the possession of

the plaintiffs in a land reforms case before the Land

Tribunal. The trial Court failed to see that the alleged

statement said to have been made by the father of the

appellants in altogether at different proceedings that too in

summary proceedings are inadmissible under the Evidence

Act. Even if it is admissible the said statements are not

proved by any collateral evidence. It is contended that

though the trial Court had come to the conclusion that the

possession of the plaintiffs is illegal, has erred in decreeing

the suit for permanent injunction contrary to law and that

illegal possession should never be protected by the Court

that too, against the true owners. It is also contended

that when the trial Court comes to the conclusion that

neither there is any document produced to show the

ownership nor document of registration is produced and

under the established principles of law such transactions

require registration. In the absence of any documentary

proof regarding ownership, the trial Court ought not to

have granted the relief of permanent injunction since they

claim that there is a sale agreement and they have not

filed any suit seeking relief for the specific performance

and hence granting of injunction is erroneous and hence,

the impugned judgment and decree of the trial Court

requires interference of this Court.

11. Learned counsel for the appellants/defendants in his

argument vehemently contended that when the plaintiffs

have claimed that they are the owners and they are in

possession and when the trial Court had come to the

conclusion that they are not the owners, ought not to have

granted the relief of permanent injunction. There is no

dispute as the land is inaam land. The trial Court also

erred in coming to the conclusion that the plaintiffs have

not proved that the land is situated at Nagaral but the

learned counsel would submit that the same was merged

with Akkarkal village. The trial Court failed to consider the

evidence of PW-1 and DW-1 in its proper perspective and

in order to prove the factum of possession, no document is

produced. The learned counsel would also submit that

regrant was made in terms of Ex.D.1 and the same was

also not disputed and the very finding of the trial Court

that plaintiffs are in possession is erroneous and hence,

the impugned judgment and decree requires interference

of this Court.

12. Learned counsel appearing for the cross objectors in

his argument would vehemently contend that the Court

below has committed an error in holding that plaintiffs had

not proved their title by producing any documentary

evidence and it is the claim of the plaintiffs that the

possession of the plaintiffs is very lengthy period, from

time immemorial itself presumes lawful title on the ground

that possession is nine points in law. The trial Court has

committed an error in coming to the conclusion that the

revenue records produced were of no use to prove title as

revenue documents are not documents of title. While

coming to such conclusion, the trial Court failed to notice

that the said documents had been produced not as

documents of title but as documents in support of title and

possession of the suit lands and there was no reason

absolutely to discard the said documents while considering

the question of title. It is contended that the trial court

has grossly failed in not taking note of the provisions of

the Bombay Revenue Act, Bombay Land Revenue Code

and the Bombay Land Revenue Manual which interpret the

effect and nature of the rights in respect of the names of

parties shown above the line and below the line in the

column relating to Patta in the revenue records.

13. The trial Court grossly erred in coming to the

conclusion that after the abolition of the names under the

Bombay Paragana and Kulkarni (Watan) Inams Abolition

Act, 1950, the persons whose names are shown above the

line in the Patta column of the revenue records have

absolutely no right for regrant of the lands and therefore,

their rights to collect the assessment is totally abolished

that it is only the persons whose names are mentioned

below the line in Patta Column of revenue records who are

entitled for occupancy rights (regrant) since they are the

persons in possession of the vatan lands. The trial Court

ought to have noticed that in view of the fact that the

plaintiffs had not claimed any right under the ancestors of

the defendants and they were not claiming any rights as

tenants of the land in question. It is also contended that

the trial Court grossly erred in not giving a definite finding

in issue relating to adverse possession. The trial Court

grossly erred in holding that the plaintiffs have not got the

suit lands regranted in their favour till today under the

provisions of the Bombay Paragana and Kulkarni (Watan)

Inams Abolition Act 1950. Hence, the same requires

interference of this Court.

14. Learned counsel appearing for the respondents in his

argument vehemently contended that the defendants are

inamdaars and plaintiffs are cultivators, tenants not

evicted and after regrant of the land they have to take the

possession from the Civil Court and no such possession

was taken and had not filed any suit. In Ex.P.1 to Ex.P.6,

the names of the plaintiffs are disclosed and the names of

the plaintiffs got removed in the year 1992. The same was

questioned in different forums and also in the writ petition

filed before this Court and this Court directed the plaintiffs

to approach the Civil Court. The trial Court failed to take

note of admission of DW-1 and categorically admitted by

the father of the defendants that plaintiffs are in

possession and the property was also sold and no

documents were produced by the defendants to show that

they are in possession after 1940.

15. The learned counsel in support of his argument relied

upon the judgment of this Court in BAPU MALLU KHOT

VS. THE DEPUTY COMMISSIONER, BELGAUM AND

OTHERS (ILR 1976 KAR 92) wherein at paragraph 3 this

Court has held that Section 7 of the Karnataka Village

Offices Abolition Act, 1961, authorises the Deputy

Commissioner to evict a person in unauthorised possession

of a land which stands resumed to Government under

Section 4 of the Act and to dispose of the land in favour of

the unauthorised holder if he satisfied the conditions

mentioned in the said section. Section 7 does not apply to

a case where the land has already been regranted in

favour of the holder of an office. If a person in whose

favour the land is re-granted finds that a third party is in

unauthorised occupation of the land in question, it is open

to him to approach the Civil court to pass a decree for

possession against the trespasser.

16. Learned counsel referring to the above judgment

would vehemently contend that the defendants have not

filed any suit seeking the relief of possession and hence

learned counsel would vehemently contend that this

judgment is aptly applicable to the case on hand. The

learned counsel also relied upon the judgment of this Court

in LEHARCHAND S/O VELJI DAND SINCE DECEASED

BY HIS LEGAL REPRESENTATIVES VS. GULABCHAND

S/O VELJI DAND SINCE DECEASED BY HIS LEGAL

REPRESENTATIVES (2015 SCC ONLINE KAR KAR

8913) wherein it has been held that if the lands were,

however, re-granted to the original holders or their legal

representatives, as in the case on hand, on the dates as

indicated above, the legal position under the KVOA Act, is

that if the re-grantee is not in possession on the date of

re-grant, his remedy is to file a suit before the Civil Court

for possession against a third party, who may be in

possession and who would be deemed to be a trespasser.

It has been further held that with regard to seeking relief

of possession of any property and extinguished right to

property under Section 27 of the Limitation Act and such

right will be extinguished when there is conferment of title

to the person out of possession, the extinguishment of title

under this provision, of the rightful owner- gives the

trespasser a good title as against the rightful owner and

any one claiming under him and the extinguished right to

property comes into play.

17. Learned counsel referring to this judgment would

vehemently contend that though the property was granted

in favour of the defendants under regrant and their right

has been extinguished since they have not filed any suit

for recovery of possession and hence the trial Court ought

to have granted the relief of declaration.

18. Learned counsel would also refer to the decision of

the Hon'ble Apex Court in EUREKA BUILDERS AND

OTHERS VS. GULABCHAND (2018) 8 SCC

67) regarding adverse possession, extinguishment of

property rights of original lessors/owners re-granted by

statute, by virtue of adverse possession of permanent

lessee of original lessors/owners. Plaintiff remained in

long, continuous uninterrupted open and peaceful

possession of suit land with assertion of ownership, as

transferee by court auction sale of permanent lessee of

original watan owners of suit land, to knowledge of whole

world. When the original owners failed to file suit within

12 years from the date of re-grant (even assuming the

same to be valid) even their re-granted right, title or

interest in suit land stood extinguished by virtue of Section

27 of the Limitation Act. The learned counsel also brought

to the notice of this Court paragraphs 48 to 52 and 58 and

referring to this judgment, the learned counsel would

vehemently contend that the right of the defendants has

been extinguished since no action was taken even after

regrant of land in favour of the defendants.

19. Having heard the learned counsel for the

appellants/defendants and also the learned counsel

appearing for the cross objectors/plaintiffs and also on

perusal of the records, the points that would arise for

consideration of this Court are:

i) Whether the trial Court has committed an error

in granting an order of injunction answering

issue No.1 as affirmative in coming to the

conclusion that the plaintiffs are in possession

of the suit schedule properties?

ii) Whether the trial Court has committed an error

in rejecting the prayer of declaration in coming

to the conclusion that plaintiffs have not

proved their title?

iii) What order?

Reg:Point Nos.1 and 2:

20. Having heard the learned counsel appearing for the

parties and on perusal of the pleadings before the trial

Court in O.S.No.103/1994 and also the written statement,

it is seen that the claim of the plaintiffs is that they are the

joint holders and owners in possession of the suit schedule

properties who have been described in the suit schedule.

It is the main contention of the plaintiffs that the plaintiffs

and their predecessors i.e., their ancestors have been in

lawful possession and enjoyment of the suit schedule lands

from time out of memory and their names have been

entered in the record of rights ever since the time of

settlement under the Bombay Land Revenue Act. It is also

admitted in the plaint itself that defendants and their

ancestors are shown above the line in the khatha as

inamdaars having the right of share in the Government

right of collection of assessment as alienies from the

Government. It is also contended that the defendants and

their predecessors in title have recognized the right of the

plaintiffs and their predecessors as lawful owners in

enjoyment though they were shown as inamdaars above

the line and the Government also recognized the plaintiffs

and their predecessors and their ancestors as being the

lawful owners in possession paying assessment and are

lawful since under Bombay Hereditary Offices (Vatan) Act

and ever since the abolition of the said Bombay Paragana

and Kulkarni Inam Abolition Act, 1950. It is their claim

that they are in lawful possession as owners in the vatan

are not extinguished under the provisions of Section 3 of

the said Bombay Paragana and Kulkarni Inam Abolition

Act, 1950. It is the contention of the plaintiffs that

defendants' ancestors are shown above the line as holders

of alienated land and merely because of the same they are

not entitled to claim any rights of re-grant and obtain an

illegal order of re-grant. Admittedly, the same was

questioned before the Tahsildar as well as the Assistant

Commissioner and those proceedings initiated by the

plaintiffs were dismissed and the writ petition was also

filed before this Court and this Court directed the plaintiffs

to approach the Civil Court claiming their rights. Hence,

they filed the suit before the Civil Court.

21. The said suit has been resisted by the defendants

denying the very contention of the plaintiffs regarding their

lawful ownership as well as lawful possession. However,

admitted that defendants and their ancestors' names have

been shown as inamdaars having right over the suit lands

as inamdaars as per the Bombay Paragana and Kulkarni

Inam Abolition Act 1950 and Bombay Hereditary Offices

(Vatan) Act. In order to prove the case of the plaintiffs,

the plaintiffs have examined the 1st plaintiff as PW-1 and

PW-1 has reiterated the contents of the plaint in the

affidavit and he was subjected to cross-examination. In

the cross-examination, he admits that he is having

acquaintance with the family of the defendants. He also

admits that on 25.01.1951 as Bombay Paragana and

Kulkarni Inam Abolition Act, 1950 and Bombay Hereditary

Offices (Vatan) Act were abolished and also he admits that

after the abolition the property vests with the State. It is

suggested that after the said property was vested,

Devekkavva Shivarao Desai and Basavanthrao Bhaskarrao

Desai made payment equal to six times of the value of the

land and got the land in their favour but the same was

denied. It is suggested that till date their names are

shown in the records as owners and also they are

cultivating and the same was also denied. He also admits

that while re-granting the land he did not object the same

since he was not aware of the said fact and no one

informed about the same. He also admits that he did not

make any application for claiming grant of the land to the

Land Tribunal. He admits that in the year 1991, the

defendants have given letter to remove his name below

the line and in the said proceedings a favourable order was

passed in favour of the defendants. But he has filed the

appeal and the same was dismissed. He was also recalled

and in further chief-examination he admits that in page

No.194 entry in respect of Sy.No.56 which has been

marked as Ex.P.35 (b) and other book is marked as

Ex.P.36. He was subjected to further cross-examination

and he admits that in the year 1982-83, the name of

Bhimarao Desai was entered and also he admits after

1987-88, the 1st defendant's name is found. It is

suggested that no entry with regard to the cultivation is

made by them in any of the documents and the same was

denied.

22. The 1st defendant in his evidence claims that

defendant Nos.2 and 3 are his brothers and they are the

vatandaars of 7 villages and they are the owners of the

suit schedule properties. It is his evidence that either the

plaintiffs or their ancestors were not in possession of the

suit schedule properties and no document is produced to

show that they are the owners of the suit schedule

properties. It is his evidence that the claim of the plaintiffs

that they are the inamdaars and owners of the property is

false and also the claim that they are in possession of the

suit schedule properties is also false. It is his evidence

that in terms of Vatan law they lost their rights. It is his

further evidence that after the death of Raghavendra

Ramji Kulkarnil, he started cultivating his land after 1949

and there is an entry to that effect till 1953. Mallappa Sudi

and Devendrappa Naregalla were cultivating the land on

their behalf and thereafter Shivaputrappa Desai and

Shankreppa Sulibhavi gave Form No.7 and the same was

rejected and thereafter they continued to cultivate the land

and that before giving application in Form No.7 to the

Tahsildar, the plaintiffs did not claim that the land

belonged to them. It is also his evidence that application

given by the plaintiffs was rejected by the Tahsildar and

they have paid Rs.6,000/- to the Government and plaintiffs

were not in possession even prior to the filing of the suit

and hence got marked the documents Ex.D.1 to Ex.D.14

and also the other documents Ex.D.1 to Ex.D.15. This

witness was subjected to cross-examination. He admits

that below the line the names of plaintiffs are entered in

the revenue documents and also admits that in the year

1992 plaintiffs' names were removed. He also admits that

the High Court directed the plaintiffs to approach the Civil

Court and hence, the present suit is filed by the plaintiffs.

He also admits that name of Karkun is found below the line

from 30 to 40 years and also he admits that after 1940 he

found the said name. But he cannot say when the name

was entered below the line. He also admits that

Shivaputrappa and Shankreppa have claimed the right as

against the plaintiffs by giving Form No.7 in respect of

Sy.No.56 to the extent of 8 acres and Shankreppa has

given the application before the Land Tribunal but he says

that he did not appear in the said matter. He admits that

both of them have claimed that they took the land from

the plaintiffs. It is suggested that his father gave the reply

in terms of Ex.P.10 stating that he gave the right in favour

of the plaintiffs and that he does not know about the

same. However, he admits that his father gave the reply

that Shivaputrappa is cultivating the land. It is suggested

that no re-grant was made in the year 1991 and the same

was denied but he admits that when the names of the

plaintiffs was removed, dispute arose in the year 1992. He

claims that after 1940, Raghavendrarao Karkun was

cultivating the land but no documents are produced to

show that he gave up his rights. He also admits that they

have not given the property to them and they have not

produced any Sanad. He admits that the name of Desai is

found in the record of rights above the line and the name

of Karkun is entered below the line and when the Vatan

law came into existence his grandfather's name was

removed and an entry was made mentioning the

Government. He admits that in the year 1992 as per their

application the name below the line was removed.

23. Having considered both oral and documentary

evidence available on record, it is the claim of the plaintiffs

that they are the joint holders and owners in possession of

the suit schedule properties. The defendants and their

ancestors are shown above the line in the Khatha as

Inamdaars having the right of share in the Government

right of collection of assessment as alienies from

Government. The defendants and predecessors in title

have recognized the right of the plaintiffs and their

predecessors as lawful owners in enjoyment though they

were shown as Inamdaars above the line and the

Government also recognized plaintiffs and their

predecessors and ancestors as being lawful owners in

possession paying assessment and are lawful owners

under the Bombay Hereditary Offices (Vatan) Act and ever

since the abolition of the said Bombay Paragana and

Kulkarni Inam Abolition Act, 1950. It is contended that

their rights have not been affected by the provisions of the

special Act. Merely because the defendants' ancestors are

shown above the line as holders of alienated land they

were not entitled to claim any rights of re-grant under

Section 4 of the said Act. It is also contended mere illegal

order of re-grant in favour of defendants' ancestors do not

confer any rights better than those rights which existed

viz-a-viz the plaintiffs and their ancestors are lawful

owners shown below the line under the system of

maintaining revenue records under the Bombay Revenue

Act and Land Revenue Manual. It is also contended that

plaintiffs have never accepted the defendants and their

predecessors as owners of the lands and their

predecessors have never disputed the lawful possession

since the time of memory for more than 100 years. But in

the cross-examination of PW-1 he admits that Bombay

Paragana and Kulkarni Inam Abolition Act and Bombay

Hereditary Officers (Vatan) Act was repealed on

25.01.1951 and also he admits that in view of the same,

all lands vested with the State but suggested that

Devekkevva Shivarao Desai and Basavanthrao Bhaskarrao

Desai have made the payment in favour of the

Government six times of the value of the land and got the

land granted in their favour and the same was denied and

also he admits that he did not object for grant in their

favour but he claims that he was not aware of the same

and also he admits that he did not make any application

claiming grant of land to the Land Tribunal and the fact

that when the names of the plaintiffs was removed, the

same was challenged but the same was dismissed and this

Court also directed the plaintiffs to approach the Civil

Court for their rights and also in the cross-examination he

admits that in the year 1982-83, the name of Bhimrao

Desai was entered in the revenue documents and the same

has been continued after 1987-88. The trial Court while

considering the material on record comes to the conclusion

that the plaintiffs are in possession of the suit schedule

properties but rejected the claim of the plaintiffs for

claiming their rights and to declare them as owners of the

property and in the cross-examination of DW-1 also he

admits that names of the plaintiffs have been entered in

the revenue records below the line and also admits that

the same was got removed in the year 1992 and the same

was questioned and also he cannot tell when the names of

the plaintiffs were entered below the line. But, admits that

Karkun's name was found below the line from 30 to 40

years. It is also important to note that DW-1 categorically

admits that Shivaputreppa and Shankreppa have claimed

their right by giving Form No.7 mentioning the names of

the plaintiffs stating that they were the farmers under the

plaintiffs and also he categorically admits that both of

them have claimed their right under the plaintiffs and

though he claims that his father has given a reply in terms

of Ex.P.10 but he says that he is not aware of the same.

But admits that his father gave the reply stating that

Shivaputreppa is cultivating the land and in the admission

of DW-1 at one breath he says that he was not aware of

the contents of Ex.P.10 but in another breath he gave the

reply that Shivaputreppa was cultivating the land. It is

also important to note that DW-1 categorically admits that

he has not produced any Sanad for having given the land

to them.

24. Having perused the material, it is very clear that the

names of the plaintiffs were mentioned in the revenue

records below the line and also on perusal of the

documents it is clear that above the line names of the

defendants have been entered in the revenue records. The

trial Court also while considering the material on record

and while giving the answer to issue No.1 comes to the

conclusion that the plaintiffs are in possession but they are

not in lawful possession. However, comes to the

conclusion that plaintiffs are entitled for the relief of

permanent injunction against the defendants unless they

are dispossessed in accordance with law. It is important to

note that the trial Court has taken note of Ex.P.9, Form

No.7 application filed by Shivaputreppa Desai showing the

plaintiffs as owners to the suit land and the same is also

admitted by DW-1 and also father of DW-1 Bhimarao Desai

has given the evidence before the Tribunal and evidence

copy is produced at Ex.P.10 wherein he has deposed that

he has sold out his above line right to Smt.Akkubai Karkun

and Bindurao Desai and the said persons are in possession

and cultivating the suit land and having considered the

same also the trial Court comes to the conclusion that the

plaintiffs are in possession of the suit property but it is the

contention of the defendants that the names of the

defendants for the first time got entered in the year 1964-

66 and hence they cannot claim that they are in

possession of the suit property. Defendant No.1 also

admits that there is no Sanad or grant produced and

plaintiffs also admit that there is no Sanad or grant to

show that their ancestors acquired the title of the land but

only they contend is that the names of the ancestors is

shown below the line but the plaintiffs have also not

produced any piece of material to show that now their

ancestors acquired title to the suit lands. No doubt, they

relied upon the record of rights since 1953 and their

names are shown below the line. In the year 1961, the

plaintiffs got entered their names to the suit land as the

second nearest legal representatives of the deceased

Raghavendra Ramaji Karkun that also after 20 years. But

the names of the plaintiffs below the line was found in the

year 1992 and the same was got removed in the year

1992 and hence dispute arose between them and no grant

was found in favour of the plaintiffs but father of the

defendants got re-granted the lands in their favour and the

same is also admitted by PW-1 during the cross-

examination.

25. The plaintiffs mainly rely on the entries made in the

record of rights and trial Court rightly comes to the

conclusion that those entries made in the record of rights

will not confer the title on the plaintiffs. But, DW-1

categorically admits his father was examined before the

Land Tribunal and defendants' father himself has sold

above line right in favour of the plaintiffs and the said

evidence was given before the Land Tribunal on

12.03.1979. It is also made to know that father of the

defendants admitted the possession of the plaintiffs over

the suit land and also admits that one Shivaputreppa has

filed Form No.7 against the suit property contending that

the plaintiffs are the owners of the suit property. If the

defendants are owners of the suit property then

Shivaputreppa who was the tenant of the defendants as

contended by the defendants what made him to file Form

No.7 contending that plaintiffs are the owners of the suit

property is not explained by the defendants. The plaintiffs

relying upon the assessment receipts which have been

marked as Ex.P.15 to Ex.P.28 and these documents

pertain to 1981 to 1992 and same also evidences the fact

that the plaintiffs are in possession of the suit property and

when the plaintiffs have placed the material before the

Court that they made the payment of assessment and only

their names were removed in the year 1992 but no

material is placed before the Court for having title over the

suit schedule property except entries found in record of

rights that too below the line.

26. The other contention of the plaintiffs in the suit is

that they were in possession of the property and their

uninterrupted possession is for more than 100 years and

also they perfected the title by adverse possession and the

trial Court also while considering this aspect in paragraph

15 discussed in detail that unless the plaintiffs admit

ownership of the defendants they cannot contend that they

have perfected the title by adverse possession but

defendants have produced Ex.D.1 to Ex.D.12 that their

right is conferred as per the Bombay Paragana and

Kulkarni (Vatan) Abolition Act but the said Ex.D.1 pertains

to the lands situated in Akkaragel village and not of the

Nagaral S.P. But it is the contention that the same has

been merged with the same village and having re-

appreciated both the oral and documentary evidence

available on record and also the grounds urged in both the

appeal and the cross objection, the very contention of the

cross-objectors/plaintiffs that the trial Court has

committed an error in granting only the permanent

injunction and not granted the relief of declaration, it has

to be noted that while decreeing the suit for the relief of

declaration there must be title and in the absence of any

title question of granting the declaration does not arise.

The plaintiffs have to prove their case and the plaintiffs

have to stand on their own legs and not depend on the

weakness of the defendants and the fact that no

application was filed for re-grant of land is admitted by

PW-1 and when such being the case question of granting

relief of declaration does not arise since no title deeds are

produced and the very contention that their ancestors are

owners of the property also cannot be accepted and hence

the trial Court has not committed any error in granting

only the relief of permanent injunction and the permanent

injunction is also granted in view of coming to the

conclusion that they are in possession and possession has

to be disturbed only in due process of law and hence, I do

not find any error committed by the trial Court in granting

the relief of only permanent injunction and declining the

relief of declaration. The main contention of the learned

counsel for the plaintiffs is that the rights of the

defendants in view of the abolition of Bombay Paragana

and Kulkarni (Vatan) Inams Abolition Act, 1950, above the

line patta column shown no right for re-grant of the land

and fails to take note of the Bombay Land Revenue Act

and also the Karnataka Land Revenue Act and rights of the

defendants are extinguished under Section 27 of the

Limitation Act and the said contention cannot be accepted

in view of admission given by P.W.-1 that no application

was given for grant. The P.W.-1 also admits that after the

abolition of Vatans Act, the property vests with the State.

The plaintiffs ought to have made applications for grant

and the same is not made. The other contention that no

suit is filed for the relief of possession. But the plaintiff

filed the suit in 1998 when the dispute started when the

name of the plaintiffs was removed and hence the Court

has to take note of facts of each case and hence the

judgment relied upon the plaintiffs' counsel will not come

to the aid of the plaintiffs and parties are agitating the

matter before the Court.

27. The other contention of the appellants/defendants

that the Court below committed an error in granting the

relief of permanent injunction is also erroneous cannot be

accepted in view of the admissions elicited from the mouth

of DW-1 in the cross-examination regarding possession is

concerned and the material found before the Court i.e.,

both oral and documentary is very clear that the plaintiffs

are in possession of the suit schedule properties and their

names are found below the line and names of the

defendants are shown above the line and the trial Court

has taken note of admission given by DW-1 and also the

deposition given by the father of the defendants before the

Land Tribunal and the fact that grant has been made in

favour of the defendants is also not in dispute and the 1st

plaintiff has categorically admitted that he did not question

the same but claims that it was not in his knowledge and

hence the appeal filed by the appellants/defendants is also

not sustainable and the trial Court has given anxious

consideration to both and oral documentary evidence and

appreciated the material on record and rightly comes to

the conclusion that the plaintiffs have proved their

possession. Hence, I do not find any merit in the cross-

objection as well as in the appeal filed by the defendants

and hence, both are liable to be dismissed.

28. In view of the above discussions, I pass the

following:

ORDER

i) The appeal in R.F.A.No.690/1998 and the

Cross Objection in R.F.A.Crob.17/1998 are

both dismissed.

ii) The judgment and decree dated 28.08.1998

passed by the Prl. Civil Judge, Sr.Dn. Bagalkot

in O.S.No.103/1994 is confirmed.

iii) The registry is directed to send back the TCR

forthwith.

No costs.

Sd/-

JUDGE

Jm/-