Karnataka High Court
Shivputrappa S/O Shivappa Angadi vs Basavennavva W/O Adivayya Guddadamath on 15 December, 2023
Author: H.P.Sandesh
Bench: H.P.Sandesh
1 RFA No. 100184/2016
IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH
DATED THIS THE 15TH DAY OF DECEMBER, 2023
PRESENT
THE HON'BLE MR JUSTICE H.P.SANDESH
AND
THE HON'BLE MR JUSTICE RAMACHANDRA D. HUDDAR
REGULAR FIRST APPEAL NO. 100184 OF 2016
BETWEEN:
1. SHRI. SHIVPUTRAPPA S/O. SHIVAPPA ANGADI,
AGE: 66 YEARS, OCC: AGRICULTURE,
R/O: YARIKOPPA, TQ: DHARWAD-580004.
2. SHRI. SHIVAPPA S/O. VEERUPAXAPPA ANGADI,
AGE: 46 YEARS, OCC: AGRICULTURE,
R/O: GOPANKOPPA TQ: HUBBALLI-580025.
SAMREEN
AYUB 3. SHRI. MANJUNATH S/O. VEERUPAXAPPA ANGADI,
DESHNUR AGE: 42 YEARS, OCC: AGRICULTURE,
R/O: GOPANKOPPA TQ: HUBBALLI-580025.
Digitally signed
by SAMREEN
...APPELLANTS
AYUB
DESHNUR
Date: (BY SRI. SHRIKANT T. PATIL, ADVOCATE)
2023.12.20
11:10:01 +0530
AND:
1. SMT. BASAVENNAVVA W/O. ADIVAYYA GUDDADAMATH,
AGE: MAJOR, OCC: AGRICULTURE,
R/O: NARENDRA TQ: DHARWAD-580008.
2. SRI. SHIVAPUTRAYYA S/O. ADIVAYYA GUDDADAMATH,
AGE: MAJOR, OCC: AGRICULTURE,
R/O: NARENDRA TQ: DHARWAD-580008.
3. SRI. VISHWANATHAYYA S/O. ADIVAYYA GUDDADAMATH,
AGE: MAJOR, OCC: AGRICULTURE,
R/O: NARENDRA TQ: DHARWAD-580008.
2 RFA No. 100184/2016
4. SMT. NEELAVVA D/O. MADIVALAYYA HEBBALLIMATH,
AGE: MAJOR, OCC: HOUSEHOLD WORK,
R/O: NARENDRA TQ: DHARWAD-580008.
BASAVARAJ S/O. ADIVAYYA GUDDADAMATH,
SINCE DECEASED BY HIS LRS,
5. SMT. DAKSHAYANI W/O. BASAVARAJ GUDDADAMATH,
AGE: 44 YEARS, OCC: HOUSEHOLD,
R/O: NARENDRA TQ: DHARWAD-580008.
6. SMT. KAVITA D/O. BASAVARAJ GUDDADAMATH,
AGE: 24 YEARS, OCC: STUDENT,
R/O: NARENDRA TQ: DHARWAD-580008.
7. SHRI. ANAND S/O. BASAVARAJ GUDDADAMATH,
AGE: 20 YEARS, OCC: STUDENT,
R/O: NARENDRA TQ: DHARWAD-580008.
8. SHRI. MAHANTAYYA S/O. ADIVAYYA GUDDADAMATH,
AGE: MAJOR, OCC: AGRICULTURE,
R/O: NARENDRA TQ: DHARWAD-580008.
9. SMT. MAHADEVI W/O. MALLAYYA HIREMATH,
AGE: MAJOR, OCC: AGRICULTURE,
R/O: NARENDRA TQ: DHARWAD-580008.
SOMAYYA S/O. CHANNABASAYYA GUDDADAMATH,
SINCE DECEASED BY HIS LRS
10. SMT. RACHAVVA W/O. SOMAYYA GUDDADAMATH,
AGE: 54 YEARS, OCC: HOUSEHOLD,
R/O: HIREMALLIGWAD,
TQ: DHARWAD-580008.
11. CHENNABASAYYA S/O. SOMAYYA GUDDADAMATH,
SINCE DECEASED BY HIS LRS
11.(A) SMT. GANGAVVA W/O. CHANNABASAYYA GUDDADAMATH,
AGE: 38 YEARS, OCC: HOUSEHOLD,
R/O: HIREMALLIGWAD, DHARWAD-580008.
3 RFA No. 100184/2016
11.(B) SRI. SOMAYYA S/O. CHANNABASAYYA GUDDADAMATH,
AGE: 17 YEARS MINOR REPRESENTED BY
HIS MOTHER AS MINOR GUARDIAN I.E.,
PROPOSED RESPONDENT NO. 11(A)
SMT. GANGAVVA W/O. CHANNABASAYYA GUDDADAMATH,
AGE: 38 YEARS, OCC: HOUSEHOLD,
R/O: HIREMALLIGWAD, DHARWAD-580008.
11.(C) SMT. CHAITRA D/O. CHANNABASAYYA GUDDADAMATH,
AGE: 15 YEARS, MINOR REPRESENTED BY
HER MOTHER AS MINOR GUARDIAN I.E.,
PROPOSED RESPONDENT NO. 11(A)
SMT. GANGAVVA W/O. CHANNABASAYYA GUDDADAMATH,
AGE: 38 YEARS, OCC: HOUSEHOLD,
R/O: HIREMALLIGWAD, DHARWAD-580008.
12. SMT. MALLAVVA W/O. SHANKRAYYA CHIKKAMATH,
AGE: 54 YEARS, OCC: HOUSEHOLD,
R/O: MUMMIGATTI, TQ: DHARWAD-580008.
13. SMT. PARAVVA GUDDADAMATH,
SINCE DECEASED BY HIS LRS
GANGAYYA S/O. SANGAYYA GUDDADAMTH,
SINCE DECEASED BY HIS LRS
RESPONDENT NO. 13 DIED RESPONDENT NO. 14 TO 18
ARE SURVIVING LEGAL HEIRS.
14. SMT. NEELAVVA W/O. GANGAYYA GUDDADAMATH,
AGE: 41 YEARS, OCC: HOUSEHOLD,
R/O: HIREMALLIGWAD,
TQ: DHARWAD-580008.
15. SMT. AISHWARYA D/O. GANGAYYA GUDADAMATH,
AGE: 16 YEARS, OCC: STUDENT,
R/O: HIREMALLIGWAD,
TQ: DHARWAD-580008.
16. SHAKAYYA S/O. SANGAYYA GUDDADAMATH,
AGE: MAJOR, OCC: AGRICULTURE,
R/O: NARENDRA, TQ: DHARWAD-580008.
4 RFA No. 100184/2016
17. MAHADEVI WO. KALIYA CHARANTIMATH,
AGE: MAJOR, OCC: AGRICULTURE,
R/O: NARENDRA, TQ: DHARWAD-580008.
18. KALLAYYA S/O. SANGAYYA GUDDADAMATH,
AGE: MAJOR, OCC: AGRICULTURE,
R/O: NARENDRA, TQ: DHARWAD-580008.
BASAVARAJ S/O. VEERUPAXAPPA ANGADI,
SINCE DECEASED BY HIS LRS
19. SMT. RENUKA W/O. BASAVARAJ ANGADI,
AGE: 34 YEARS, OCC: HOUSEHOLD WORK,
R/O: GOPANKOPPA, TQ: HUBBALLI,
DIST: DHARWAD-580025.
20. VEERUPAXAPPA S/O. BASAVARAJ ANGADI,
AGE: 10 YEARS, OCC: STUDENT,
R/O: GOPANKOPPA, TQ: HUBBALLI,
DIST: DHARWAD-580025.
21. PAVAN S/O. BASAVARAJ ANGADI,
AGE: 5 YEARS, OCC: STUDENT,
R/O: GOPANKOPPA, TQ: HUBBALLI,
DIST: DHARWAD-580025.
22. LAXMAN S/O. FAKIRAPPA KADAPPANAVAR,
AGE: MAJOR, OCC: AGRICULTURE,
R/O: MAYOR PARK,
DIST: DHARWAD-580004.
...RESPONDENTS
(BY SRI. V.G BHAT, ADVOCATE FOR R1 TO R9;
SMT. JYOTI B. HURAKADLI, ADVOCATE FOR R10, R12, R13,
R14 TO R18; NOTICE SERVED TO R11(A) AND R11(B);
R11(C) IS MINOR REPRESENTED BY R11(A);
NOTICE SERVED TO R19;
R20 AND R21 ARE MINORS REPRESENTED BY R19;
R13 DECEASED; R14 TO R18 ARE TREATED AS LRS OF DECEASED
R13)
5 RFA No. 100184/2016
THIS REGULAR FIRST APPEAL FILED UNDER ORDER SEC. 96 OF
CODE OF CIVIL PROCEDURE, PRAYING THAT, JUDGMENT AND DECREE
PASSED BY THE HION'BLE III ADDL. SR. CIVIL JUDGE AND CJM
DHARWAD IN O.S. NO.94/2010 DATED 26/04/2016 MAY PLEASE BE
SET ASIDE THE SUIT OF THE PLAINTIFFS WITH COSTS.
THIS REGULAR FIRST APPEAL HAVING BEEN HEARD AND
RESERVED ON 27.11.2023, COMING ON FOR PRONOUNCEMENT OF
JUDGMENT THIS DAY, RAMACHANDRA D. HUDDAR, J., DELIVERED
THE FOLLOWING:
JUDGMENT
The appellants have preferred this appeal being
aggrieved by the dismissal of their suit in OS No.94/10 by
judgment and decree dated 26.4.2016 passed by the III
Additional Sr.Civil Judge and CJM, Dharwad.
2. Appellants are plaintiffs and respondents are
defendants before the trial Court. For the purpose of
convenience, parties to this appeal are referred to as per their
rank before the trial Court.
3. That plaintiffs filed suit against defendants seeking
the relief of declaration to declare that they are the absolute
owners of the suit schedule property being the legal heirs of
late Shivappa Angadi who purchased the suit schedule property
under registered sale deed dated 30.6.1952 and also prayed
for grant of permanent injunction against defendants from
obstructing their peaceful possession and enjoyment of the suit
schedule property.
4. By amending the plaint, plaintiffs also prayed to
declare that the sale transaction entered into between
defendant nos. 1 to 13 and defendant no.15 as illegal, sham
and bogus and the same is not binding on them.
5. The suit schedule property has been described by
the plaintiffs as RS No.53 measuring 1 acre 23 guntas and
presently bearing Block No.72/Hissa measuring 1 acre 23
guntas situated at Nuggikeri village, Dharwad Taluk with their
boundaries mentioned in the schedule (hereinafter referred to
as suit schedule property) for the purpose of convenience.
6. It is the case of the plaintiffs that, father of plaintiff
no.1 and grandfather of plaintiff nos. 2 and 3 purchased the
suit schedule property under registered sale deed dated
30.6.1952 from one Smt. Eravva W/o.Channabasayya
Guddadamath. Accordingly, plaintiffs' ancestors came in
possession of the suit schedule property and they were in
actual physical possession and enjoyment of the suit property.
After demise of father of plaintiff no.1 and grandfather plaintiff
nos. 2 and 3, plaintiffs continued in possession and enjoyment
of suit schedule property. Accordingly, their name came to be
entered in the record of rights in Column No. 12(2) and 10
instead of Col.9.
7. It is further case of the plaintiffs that, plaintiffs'
name ought to have been entered in Col.No.9 after the death
of their father, but, due to mistake of the Revenue Authorities,
their name was entered in Col.No.12(2) and Col. No.10 of the
RTC extract. The said Shivappa who was the purchaser of the
schedule property i.e. ancestor of the plaintiffs, had no
knowledge about the Revenue Records as to where exactly the
names to be entered and they kept quite.
8. As per the Consolidation Proceedings, the said
earlier Sy.No.53 was changed as Block No.72 measuring 1 acre
23 gunats. To that effect, Mutation Entry Nos.361 and 362
were certified by the Revenue Authorities.
9. It is further case of the plaintiffs that, after the
advent of the Karnataka Land Reforms Act, these plaintiffs
submitted Form No.7 for grant of occupancy rights in respect
of property purchased by their ancestors. But, the Land
Tribunal rejected the claim of plaintiffs on the ground that by
virtue of sale deed stated supra, there is no necessity to grant
the occupancy rights in their favour as they are the owners of
the schedule property. Later, the plaintiffs came to know about
the recording of their names in the revenue records in Col. No.
12(2) and 10.
10. It is alleged by the plaintiffs that, on 15.6.2010,
taking advantage of ignorance of plaintiffs, defendants came to
the schedule property saying that plaintiffs' names have been
deleted from the revenue records and they have to vacate the
property as defendants are intending to alienate the schedule
property. In collusion with the Revenue Authorities, defendants
nos. 1 to 13 got deleted the names of the plaintiffs from the
revenue records. Therefore, the plaintiffs were constrained to
file the suit.
11. It is contended that, during the pendency of the
suit, though the interim order of status-quo was operating in
respect of the suit schedule property, these defendants 1 to 13
sold the property to defendant no.15 under Registered Sale
Deed dated 18.08.2011. Therefore, the alleged sale deed is
sham, bogus and the same is not binding on the plaintiffs.
Therefore, for all these reasons, the plaintiffs prayed to decree
the suit as prayed.
12. Defendant No.14 is brother of defendant nos. 2 and
3. Since he was not available for signature, he has been
arrayed as defendant no.14 as there is no claim of the plaintiffs
against him.
13. Pursuant to suit summons, defendants appeared
before the Court. Defendant No.2 filed written statement and
the same was adopted by defendant Nos. 1,3, 4, 6,7, 9 and 11
to 13 by filing memo, whereas, defendant No.15 also has filed
his independent written statement.
14. It is specific contention of the defendants that, suit
of the plaintiffs is false, frivolous and not sustainable in the
eyes of law. It is contended that, the plaintiffs' ancestors
purchased the schedule property when the provisions of
Bombay Prevention of Fragmentation and Consolidation of
Holdings Act, 1947 (hereinafter referred to as `Fragmentation
Act' for convenience) was in force. Since the vendors violated
the provisions of the Fragmentation Act, the Assistant
Commissioner, Dharwad vide order 22.6.1959 in proceedings
No.CON/SR/598 on the direction of the Deputy Commissioner
vide Order No.REV SR NO.5427 dated 16.5.1959, cancelled the
earlier alleged sale deed 30.6.1952 as the same is void under
Section 9(2) of the Fragmentation Act and also directed the
Tahsildar, Dharwad to evict the plaintiffs from the suit schedule
property. Thus, neither the plaintiffs' ancestors nor the
plaintiffs were in possession of the suit property due to
cancellation of sale deed as it was held to be void document
under the provisions Section 9(2) of the Fragmentation Act.
15. It is further contended that the Asst. Commissioner
directed to evict the ancestors of the plaintiffs summarily and
accordingly, the Tahisldar, Dharwad has initiated the
proceedings. Thus, either the plaintiffs or ancestors or the
plaintiffs have retained any right, title or interest in the
schedule property. They were not at all in possession of the
property. Plaintiffs are also not in possession of the same. As
the said sale deed has been cancelled by the revenue
authorities, now the plaintiffs cannot claim any right over the
schedule property.
16. The schedule property was re-delivered to the
original owner Smt. Eravva W/o. Channabasayya Guddadmath.
Accordingly, her name came to be entered in the revenue
records. After her demise, the name of defendants was entered
in the revenue records as per ME 675 of Nuggikeri Village.
Thus these defendants have inherited the suit property from
the original owner Smt. Eravva W/o.Channabasayya
Guddadamath as her legal heirs.
17. It is denied that, the plaintiffs are owners of the
schedule property. The names of the defendants 1 to 13
continued in revenue records. It is contended that, plaintiffs
cannot claim that, they are the absolute owners of the
schedule property. The suit is not maintainable under Section
34 of the Fragmentation Act. So also, in view of the provisions
Fragmentation Act, the present suit is liable to be dismissed.
18. Likewise, defendant No.15 has filed his written
statement. The contents of written statement of defendant
No.15 is nothing but replica of contents of written statement
filed by defendants. According to defendant no.15, he is a
bona fide purchaser of the schedule property for a valuable
consideration and the same was registered before the Sub-
Registrar, Dharwad from the date of re-delivery of the suit
property by the Tahsdilar to the erstwhile owner and after her
death her legal heirs were in possession till the sale of the
same to him. He further contended that he is in peaceful
possession and enjoyment over the suit property by virtue of
Registered Sale Deed and sought for dismissal of the plaintiffs'
suit.
19. Based upon the rival pleadings of both the parties,
the trial Court framed in all 8 issues. They read as under:
ISSUES
1. Whether the plaintiffs prove that the father of the
plaintiff No. 1 and grand father of the plaintiffs No. 2
and 3 namely Shivappa purchased the suit property
under Registered Sale Deed dated: 30.06.1952 and
by virtue of the said Sale Deed they became the
owners and in possession of the suit property?
2. Whether the defendants prove that the Sale Deed
executed in favour of the father of the plaintiff No. 1
and grand father of the plaintiffs' No. 2 and 3 with
respect to the suit property was cancelled?
3. Whether the defendants' No. 1 to 4, 7, 9 and 11 to
13 proves that they are in possession of the suit
property?
4. Whether the defendant No. 15 proves that he is the
bonafide purchased and in possession of the suit
property?
5. Whether the defendants prove that the suit is barred
by limitation?
6. Whether the plaintiffs prove that the alleged
interference by the defendants?
7. Whether the plaintiffs are entitle for the reliefs
claimed in the suit?
8. What order or decree?
20. Before the trial court, to prove the case of the
plaintiff, Shivaputrayya Angadi i.e. plaintiff no.1 was examined
as PW.1 and one T.N.Patil was examined on behalf of the
plaintiffs as PW.2. On behalf of plaintiffs Ex.P1 to P17 are
marked. To rebut the evidence of plaintiffs, one
Channabasayya Guddadamath i.e. defendant No.8(b) was
examined as DW.1 and Kallayya Guddadamath i.e. defendant
No.13 was examined as DW.2 and got marked documents vide
Ex.D1 to D9 and closed defendant's evidence.
21. The learned trial Court, on hearing the arguments of
both the side and on perusal of the record placed by respective
parties, answered issue Nos.1, 4, 6 and 7 in the negative and
other issues in the affirmative and ultimately dismissed the suit
of the plaintiffs.
22. This is how the plaintiffs are before this Court
challenging the said judgment and decree passed by the trial
Court.
23. It is submitted by the learned counsel for the
plaintiffs, Sri Shrikant T.Patil that, as the ancestors of the
plaintiffs have purchased the schedule property under absolute
Registered Sale Deed dated 30.6.1952 from late Eravva
Guddadamath, they have become the owners of the property.
Late Eravva Guddadamath being the owner of the suit property
sold the same to late Shivappa, the father of the plaintiff no.1
and grandfather of plaintiff nos. 2 and 3. Plaintiffs have
succeeded to the suit schedule property. He submits that, as
the plaintiffs are illiterate and rustic villagers, they are not
knowing about these RTC entries and that their names were
wrongly entered in the Col.No.12(2) in RTC extract because of
the mistake committed by the Revenue Authorities. The
plaintiffs came to know about the said fact only on 15.6.2010
when there was interference by the defendants when the
status-quo order was operating. He submits that, there was
alienation of the suit schedule property in favour of defendants
1 to 13 clandestinely. Thus, it is contended by the counsel for
the plaintiffs that the provisions of Fragmentation Act have no
application to the present facts of the case as contended by
defendants. It is contended that, without issuing any notice,
the revenue authorities initiated the proceedings and the
plaintiffs have no knowledge about the same. As the plaintiffs
are purchasers of the property, plaintiffs are in possession of
the suit property continuously, there was no occasion for the
revenue authorities to re-deliver the property to the original
owner Smt. Eravva as contended by the defendants.
24. In support of his submission, he relied upon various
pleadings, oral and documentary as well as provisions of
Fragmentation Act. He also cited some of the judgments in
support of his submission. They read as under:
1. Gangabishan versus Motiram and another (2000) 9
Supreme Court Cases 189.
2. Damodar Narayan Sawale (D) through LRs. Versus Shri
Tejrao Bajirao Mhaske and ors. 2023 Live Law (SC) 404.
3. Mrs. Geetabai w/o Mahagulal and Anr. Vs. Kailash s/o
Prakashchandra Makkad 2019 (4) ALL MR 269.
25. As against this submission, learned counsel for the
respondents 1 to 9 Sri V.G.Bhat, submits that, on appreciation
of oral and documentary evidence and on application of
Fragmentation Act, the trial Court has rightly dismissed the
suit of the plaintiffs. It is submitted by the counsel for the
respondents that there is no illegality or perversity committed
by the trial Court in dismissing the suit. He also cited the
judgment in support of his submission. It reads as under:
1. Vinay Krishna vs. Keshav Chandra and another,
AIR 1993 SC 957.
26. He too relies upon the provisions of Fragmentation
Act as well as the evidence and documents relied upon by the
respondents.
27. We have given our anxious consideration to the
arguments of both the side and meticulously perused the
records. The points that would arise for our consideration are:
(i) Whether the plaintiffs are right in
claiming their title over the schedule
property based upon the sale deed dated
30.6.1952 executed by Eravva in favour of
the father of plaintiffs 1 and grandfather of
plaintiff nos. 2 to 4 and the very
proceedings initiated by the Revenue
Authorities is against the provisions of
Fragmentation Act ?
(ii) If so, whether the judgment of
dismissal of the suit by the trial Court is
perverse, capricious and requires
interference by this Court?
(iii) What order?
Our answers to the points 1 and 2 are as per following
reasons:
28. Before adverting to the other aspects of the case,
let us analyze the admitted facts between both the parties. The
admitted facts are; initially the suit schedule property was
numbered as Survey No.53. Because of amalgamation of
survey number it was renumbered as Block No.72. In all the
said survey number measuring 8 acres. Out of that 1 acre 23
guntas was purchased by Shivappa Angadi father of plaintiff
no.1 and grand father of plaintiff nos. 2 and 3 from Smt.
Eravva under Registered Sale deed dated 30.6.1952.
Accordingly, their name came to be entered in the revenue
records. It is also admitted fact between both the side that, the
names of the plaintiffs were appearing in Col.12(2) of RTC
extract of the schedule property and the same were
subsequently deleted. There was initiation of revenue
proceeding by the Deputy Commissioner. It is the specific
contention of plaintiffs that, there was an order of status-quo
passed in OS No.94/2010 and during the operation of status-
quo order, defendant nos.1 to 3 sold the schedule property to
defendant no.15. These are all admitted facts which need not
be proved.
29. In this case, rather than the oral evidence,
documentary evidence as well as question of law is involved.
The same has to be decided in relation to clear application of
the Fragmentation Act. However, for better appreciation of the
evidence placed on record, it is just and proper to assess the
evidence of plaintiffs as well as defendants along with
respective documents produced by both the sides.
30. PW.1 being plaintiff no.1 has reiterated the plaint
averments in his evidence on oath. In support of his
submission, he relied upon various documents Exs.P1 to P17.
This PW.1 has been directed with severe cross-examination. He
admits that, earlier suit Sy.No. was numbered as R.S.No.53
and now it is re-numbered as Block No.72 measuring now 8
acres 5 guntas. He admits that the father of plaintiff no.1 and
grand father of plaintiff nos. 2 and 3 purchased 1 acre 23
guntas. He denied the suggestion that, because of
Fragmentation Act, the Asst. Commissioner, Dharwad by
initiating the revenue proceedings, cancelled the sale deed by
virtue of his order dated 22.6.1959.
31. PW.2 Topanagowda Ninganagowda Patil is an
independent witness who has come before the Court to speak
that he know both plaintiffs and defendants and that it is
plaintiffs who are in possession of the schedule property. He
has deposed some ignorance about the proceedings initiated
by the Revenue Authorities.
32. From the evidence of PWs. 1 and 2, it is very much
clear that these plaintiffs are not aware of the revenue
proceedings and they have deposed ignorance of the said
proceedings. It is admitted fact by both the parties that after
the advent of Karnataka Land Reforms Act, the plaintiffs
submitted Form No.7 seeking grant of occupancy rights in
respect of schedule property. The land Tribunal by its order
dated 28.11.1981 rejected form No.7 on the ground that
plaintiffs are the owners of schedule property.
33. According to counsel for the plaintiffs, Ex.P2 the
sale deed dated 30.6.1952 is the sheet anchor for the plaintiffs
to show that the plaintiffs are in possession of the property.
Ex.P1 is RTC extract. Mutation Registrar extract is at Ex.P4.
The other documents produced by the plaintiffs are Ex.P5 the
death certificate of Shivappa, Ex.P6 and P7 RTC Extract, Ex.P.8
is the certificate issued by Village Accountant, Nuggikeri,
Ex.P.9 copy of order dated 11.06.2012 by the Tahsildar,
Dharwad. Vide Ex.P4, the mutation came to be certified
cancelling the sale deed. No name of either the Government or
the owner came to be entered by virtue of this mutation entry.
To show that the plaintiffs' names is appearing in Col.11 and
12(2) RTC extract Ex.P6 and P7 are produced. Contents of
these documents are not disputed by the defendants. The total
measurement of Block no.72 is 8 acres 7 guntas. The said
certificate was issued by the Village Accountant, Nuggikere as
per Ex.P8. The name of Eravva came to be entered in respect
of Block No.72 as per Ex.P10. The name of Government - KLR
is also entered as per Ex.P10. By virtue of sale deed in favour
of Shivappa Basappa Angadi as per Ex.P12, a mutation came
to be certified. This mutation is not disputed by the
defendants.
34. It is submitted by the counsel for the plaintiffs that,
right from the year 1952, the name of plaintiffs is appearing in
the encumbrance certificate and there is no change to that
effect. To prove the same, Ex.P14 and P16 are produced.
35. It is the case of the plaintiffs that even prior to
purchase of schedule property by Shivappa Angadi, the
schedule property was on lease in his favour executed by Smt.
Eravva. To that effect, Ex.P17 is produced. This document is
also not disputed by the defendants.
36. DW.1 Channabasayya S/o. Somayya Guddadamath
i.e. defendant no. 8(b) has reiterated the contents of the
written statement. He is specific that, because of provisions of
Fragmentation Act, the very sale in favour of Shivappa Angadi
the father of first plaintiff and grandfather of plaintiff nos. 2
and 3 by defendants' ancestor Smt. Eravva has been cancelled
by the revenue authorities. Therefore, defendants 1 to 13 have
become the owners of the schedule property. He speaks
regarding certification of mutation entry. He has been
subjected to severe cross-examination by the plaintiffs. He has
deposed that, even before execution of sale deed dated
18.8.2011, they had appeared before the Court in OS
No.94/2010. He denied all the suggestions so directed to him.
37. DW.2 is Defendant no.13. He has reiterated the
averments made in the written statement. He too has been
cross-examined by the plaintiffs. He has deposed that, he
knew the status-quo order passed in this suit. But, stated that,
he does not know about the public notice issued by the
authorities in respect of the suit schedule property. He has
stated he does not know whether Defendant no.15 knows
about the issuance of public notice or not.
38. There is total denial by these two witnesses. The
defendants much rely upon the documents in the shape of RTC
extracts produced at Ex.D1 to D3. Contents of these
documents are not denied by the defendants. In Ex.D3, RTC
Extract, it is noticed that along with names of defendants'
names, it is mentioned as `Sarkari' i.e. Government which is
still appearing in the revenue records. Ex.D5 is the notice
issued by the Asst. Commissioner, Dharwad to Eravva as well
as Shivappa calling upon them to appear and produce the
documents. So also Ex.D6 is the notice issued by the Circle
Inspector, Dharwad. Thereafter, Ex.D7 came to be issued
dated 22.6.1959 by the Tahsildar. It is stated in this order that
as per the provisions of Sec. 9(2) of the Fragmentation Act, it
is stated that Smt. Eravva Channabasayya Guddadamath is the
owner of the property in respect of 1 acre 23 guntas out of the
land bearing RS No.53 of Nuggikeri Village.
39. Ex.D8 is the mutation entry showing the name of
Eravva Channabasiaah Gududdamth as "Kabzedar". Ex.D9 is
also a notice issued by the Tahsildar. Except these documents,
no other documents are produced by the defendants.
40. It is argued by the counsel for the plaintiffs that, the
proceedings of the revenue authorities cannot deprive the
plaintiffs of their title over the schedule property. No doubt it is
the Government which has to initiate action. No such
application was filed either by the defendants or ancestors of
defendants nos. 1 to 13 that, there is violation of
Fragmentation Act by the plaintiffs. It is submitted that, it is
the duty of the Court to consider, whether government can
apply Fragmentation Act or not. Government may act or may
not act. It is the choice is of the Government. There is no right
to relief as in an appeal or revision under the Fragmentation
Act.
41. For better appreciation of the said Act, it is just and
proper to read the provisions of the Fragmentation Act.
Defendants have pressed into service the provisions of Section
9, 14, 36 and 36B of the Fragmentation Act. The said provision
reads as under:
Section 9. Penalty for transfer of partition contrary to
provisions of Act-
(1) The transfer or partition of any land contrary
to the provisions of this Act shall be void.
(2) The owner of any land so transfer or
partitioned shall be liable to pay such fine not exceeding
Rs. 250 as the Collector may, subject to the general
orders of the [State] Government, direct. [Such fine
shall] be recoverable as an arrear of land revenue.
[(3) Any person un-authorisedly occupying, or
wrongfully in possession of, any land, the transfer or
partition of which, either by the act of the parties or by
the operation of law, is void under the provisions of this
Act, may be summarily evicted by the Collector]:
[ Provided that, save as otherwise provided in
Section 31, the Collector may, upon an application
made in this regard, regularize a transfer or partition of
a land contrary to the provisions of this Act made on or
after 15th day November 1965 and before the date of
commencement of Maharashtra Prevention of
Fragmentation and Consolidation of Holdings
(Amendment) Act, 2017 (Mah. LVIII of 2017), if such
land is allocated to residential, commercial, industrial,
public of semi-public or any non-agricultural use, in the
prevailing draft or final Regional Plan; or is intended to
be used for any bona fide non-agricultural user, subject
tot payment of regularization premium at such per
centum not exceeding 25 per cent. Of the market value
of such land as per the Annual Statement of Rates, as
the Government may notify, from the time to time, in
the Official Gazette:
Provided further that, save as otherwise provided in
Section 31, if a transaction of transfer or partition of
land contrary to the provisions of this Act is regularised
on the ground that the land would be used for any bona
fide non-agricultural use, then failure to start such bona
fide non-agricultural use within 5 years from the date of
regularization shall result in forfeiture of such land by
the Collector. Such land thereafter shall be first offered
to the holder or occupant of a neighbouring contiguous
survey number or recognized sub-division of a survey
number on payment of 50 er cent. of the market value
of such land as per the prevailing Annual Statement of
Rates and three-fourth of the amount so collected shall
be paid to the defaulting person from whom such land
was forfeited to the Government and the remaining
one-fourth of the amount so collected shall be credited
into the Government account. Where occupant of such
neighbouring contiguous survey number or recognized
sub-division refuses to purchase the fragment, the
fragment shall be auctioned by the State Government
and the proceeds thereof shall be divided between the
defaulting person and the government in the ratio of
3:1.
Explanation.- For the purpose of this sub-section, the
term "Annual Statement of Rates" shall mean the
Annual Statement of Rates published under the
provisions of the Bombay Stamp (Determination of True
Market Value of Property) Rules, 1995 of any other
Rules for the time being in force in this regard,
prevalent in respect of the year in which the order of
regularisation is issued by the Collector or the year in
which such premium is paid, whichever is later.
Section 14. Fragment not to be sold at Court sale or
created by such sale. - Notwithstanding anything
contained in any law for the time being in force, on
fragment, in respect of which a notice has been given
under sub-section (2) of Section 6, shall be sold at any
sale held under the orders of any Court except to [any
agriculturalist as defined in relevant tenancy law] and
no land shall be sold at such sale so as to leave a
fragment.
Section 36. Except as provided in this At, no appeal or
revision application shall lie from any order passed
under Chapter II, III or IV of this Act.
Section 36B. Suits, involving issues required to be
decided under this Act. - (1) If any suit instituted in any
Civil Court or Mamlatdar's Court involves any issues
which are required to be settled, decided or dealt with
by any authority competent to settle, decide or deal
with such issues under this Act (hereinafter referred to
as the `competent authority1) the Civil Court or
Mamlatdar's Court shall stay the suit and refer such
issues to such competent authority for determination.
(2) On receipt of such reference from the Civil Court or
Mamlatdar's Court, the competent authority shall deal
with and decide such issues in accordance with the
provisions of this Act, and shall communicate its
decision to the Civil Court or Mamlatdar's Court and
such Court shall thereupon dispose off the suit in
accordance with the procedure applicable thereto."
42. On scrupulous reading of the Fragmentation Act,
here Ex.P2 the sale deed dated 30.6.1952 shows that it was
plaintiffs' ancestor purchased the schedule property and the
said transaction was of real nature. Section 9(1) of the
Fragmentation Act makes void only the transfer or partition of
any land contrary to the provisions of the said Act shall be
void. The word `transfer' is not defined under the
Fragmentation Act. Though the expression `Land' has been
defined thereunder, as per Sec.2(5) of the Fragmentation Act,
the term `Land' means `agricultural land whether alienated or
unalienated'. In the said circumstances, to know the meaning
of the words `Transfer of any Land', used in Section 9(1) of
the Fragmentation Act, we have to see the definition of
`Transfer of Property' defined under Sec. 5 of the Transfer of
Property Act, 1882 (herein after referred as the `TP Act'), The
said Section 5 of the TP Act reads as under:
5. " Transfer of property" defined- In the following sections
"transfer of property" means an act by which a living
person conveys property, in present or in future, to one or
more other living persons, [or to himself] and one or more
other living persons; and "to transfer property" is to
perform such act.
[In this section " living person" includes a company or
association or body of individuals, whether incorporated or
not, but nothing herein contained shall affect any law for
the time being in force relating to transfer of property to or
by companies, associations or bodies of individuals.]
43. Under Section 54 of the TP Act, `Sale' is defined.
Thus, the term `Transfer' is a word in a broader sense and the
word `Sale' is a specific word. `Sale', going by definition under
TP Act, pre-supposes transfer from one person to another of the
right in property and in other words in sale the ownership of the
property is transferred. Therefore, we have to read Section 54 of
the TP Act.
54. "Sale" defined.--''Sale" is a transfer of ownership in
exchange for a price paid or promised or part-paid and
part-promised.
Sale how made.--Such transfer, in the case of tangible
immoveable property of the value of one hundred rupees
and upwards, or in the case of a reversion or other
intangible thing, can be made only by a registered
instrument.
In the case of tangible immoveable property of a
value less than one hundred rupees, such transfer may be
made either by a registered instrument or by delivery of
the property.
Delivery of tangible immoveable property takes place
when the seller places the buyer, or such person as he
directs, in possession of the property.
Contract for sale.--A contract for the sale of
immoveable property is a contract that a sale of such
property shall take place on terms settled between the
parties.
It does not, of itself, create any interest in or charge
on such property.
44. Section 17 of the Registration Act mandates that, if
the property values more than Rs.100/-, it requires registration.
Ex.P2 is a registered document. Therefore, transfer of land worth
more than Rs.100 by a registered deed implies that transfer of
all rights as a vendor possessed in the property concerned.
45. Learned counsel for the plaintiff relied upon a
Judgment of Hon'ble Supreme Court in the case between
Damodar Narayan Sawale rep. by LRs. Vs. Sri Tejrao
Bajirao Mhaske and others1 and submits that, in view of the
law laid down in the aforesaid judgment, sale in favour of
ancestors of plaintiff is valid and same cannot be cancelled. The
2023 Livelaw (SC) 404
Hon'ble Apex Court in the aforesaid judgment at paragraphs 18,
19 and 22 observed as under:
18. Thus, obviously, it is not the object or purpose of the
Fragmentation Act to totally prohibit or prevent transfer of
land within any notified 'local area', but it is only aimed at
preventing the fragmentation of agricultural holdings and to
provide for the consolidation of agricultural holdings for the
purpose of the better cultivation thereof.
19. In the context of the above mentioned rival pleadings,
contentions and the position revealed from the facts and the
provisions, the question to be considered is whether the
second defendant herein had made out any case for
attracting the provisions of the Fragmentation Act /or in
other words, whether the trial Court was right in applying
the provisions under the said Act and the High Court was
legally correct in restoring the decree of the trial Court after
reversing the judgment and decree of the First Appellate
Court, in view of the mutually annihilative pleas taken up by
the second defendant viz., the first respondent herein and
accepted by the trial Court and the High Court. Contextually,
it is apposite to state that though in a suit a defendant is
entitled to raise alternative inconsistent plea he could not be
permitted to raise pleas which are mutually destructive of
each other and raising such pleas would only work out to his
detriment.
22. It is also worthwhile in the contextual situation to refer
to Section 9 of the Code of Civil Procedure, 1908 (hereinafter
referred to as, 'the CPC'), which confers jurisdiction upon the
Civil Courts to determine all disputes of civil nature, unless
the same is barred under a statute, either expressly or by
necessary implication. We shall not be oblivious of the fact
that the second defendant had not so far approached the
competent authority under the Fragmentation Act to nullify
the action undertaken under the conveyance, resorting to
the remedy contemplated under the Fragmentation Act,
going by the materials on record. At any rate, there is no
such case for him. We made this statement because the first
proviso to Section 9(3) of the Fragmentation Act would
reveal that the automatic voidness would not be attracted to
a transfer of land contrary to the provisions of the
Fragmentation Act, if it was made on or after 15th day of
November, 1965 and before the date of commencement of
Maharashtra Prevention of Fragmentation and Consolidation
of Holdings (Amendment) Act, 2017 and that apart, Section
31, referred therein, which puts bar for sale, makes it clear
under clause (iii) Sub-section (3) thereof, that the said bar
would not apply to any land which is to be transferred to an
agriculturist, in its entirety provided such transfer is not
creating a fragment. We may hasten to add here that we
shall not be understood to have held that the subject suit
involves any issue(s) which is required to be settled, decided
or dealt with any authority competent to settle, decide or
deal with such issue under the Fragmentation Act. As a
matter of fact, the very applicability of the Fragmentation
Act itself on sale transactions would depend upon the
question whether the area in question falls under a Municipal
Council or not and if it does not, then on the further question
as to whether it falls within a local area notified under the
Fragmentation Act. Above all, the case attempted to be
projected and proved by the second respondent is that in
regard to sale deed dated 04.07.1978 and the sale deed
dated 21.04.1979 (Ext.128) they were never intended to be
acted upon and in fact, they were never been acted upon. If
that is accepted, then, there is absolutely no question of
applicability of the provisions of 'the Fragmentation Act' as
they would apply only in the eventuality of an actual transfer
of land or partition of land subject to the satisfaction of other
conditions.
46. The principles laid down in the said Judgment can
very well be applied to the present facts of this case. So, it is
required to be noted that, despite the lack of foundational facts
attracting the applicability of Fragmentation Act, the position
revealed from the judgment of Hon'ble Supreme Court, it is the
Civil Court which can decide the title over the property. In this
case, defendants have not filed any counter claim.
47. On careful reading of the judgment of the trial Court,
it would reveal that virtually the trial Court considered the
validity of the sale deed Ex.P2 executed by Smt.Eravva in favour
of Sri Shivappa without directly framing an issue to that effect.
So, in view of discussion made above and reasons mentioned in
the aforesaid paragraphs, the transaction, in between plaintiff's
ancestor and the ancestors defendant nos. 1 to 13, as per Ex.P2
the provisions under the Fragmentation Act will not come to the
aid of defendants 1 to 13 and the virtual declaration of the said
sale deed as void, is absolutely not sustainable in the eyes of
law.
48. The facts of this case and the facts of the aforesaid
judgment of the Hon'ble Supreme Court are quite similar. It is a
fact that, the sale deed dated 30.6.1952 vide Ex.P2 is a
registered document and this executant was none else than the
ancestor of defendant nos. 1 to 13 Smt. Eravva. Defendant nos.1
to 13 admit the said sale deed. But, contends that in view of the
Fragmentation Act, the sale deed was cancelled. To show that
sufficient opportunity was given before cancellation of the said
deed, no documents are produced by defendant nos. 1 to 13.
49. It is the specific case of the plaintiffs that, it is they
who are in exclusive possession of the suit schedule properties.
They had not prayed for possession as per the arguments of the
learned counsel for the plaintiffs. So far as the pleadings of the
parties is concerned, it appears that the question of ownership
has to be decided only by the Civil Court. Unlike under the PTCL
Act, there is no provision under the Fragmentation Act to cancel
the sale deed.
50. The provisions of Section 35 of the Fragmentation Act
or any ancillary proceedings do not provide for any limitation. It
is true that, in the absence of any provision for limitation, the
claim of the plaintiffs can very well be decided. The language of
Section 35 is similar. We have no hesitation to take a view in the
light of the decision of Hon'ble Supreme Court that there is
power vested in the authority concerned to examine the validity
of the relevant orders where it has called for the records as per
the prayer. In the instant case, there is nothing on record which
shows that Block No.72 was declared as `fragment' and was
recorded as `fragment' in record of rights. In the instant case,
provisions of Section 7 are not attracted because no notice has
been given under Section 6(2) in respect of Sy.No. No.53 to the
plaintiffs' ancestors. Since Section 7 is not attracted, question of
taking action under Section 9 do not arise.
51. The learned trial Court while answering Issue No.4
has held that, defendant No.15 has not proved that he is a bona
fide purchaser of the schedule property and he is in possession
of the property. Being aggrieved by the said findings, defendant
No.15 has not preferred any appeal before this Court. Thus, the
finding on issue No.4 has attained finality. In view of non-
challenging of the said finding, findings given by the trial Court
on issue No.4 holds good and there need not be any further
discussion as no argument is advanced by the defendant Nos. 1
to 13 by invoking the provisions of Order 41 Rule 33 of Code of
Civil Procedure.
52. We have perused the copies of the record of rights
available in case records. In record of rights, nowhere Sy.No.53
was declared as fragment. On this count, the order passed by
the Asst. Commissioner can be termed as extra-legal (exceeding
power).
53. On hearing the submission of the counsel for the
plaintiffs, we are fully satisfied regarding the submission that the
provisions of Fragmentation Act have no application to the
present facts of the case as there was no declaration of Sy.No.53
as a fragmented land. That means alleged fragment was never
recorded in the record of rights so that the public in general can
have notice of such fragment before endeavouring to purchase
such land. Said reasons are supported by the decision of Hon'ble
Bombay High Court reported in a judgment in the case of
Putalibai vs. Shiva Gundi2. Even otherwise the language of
Sections 6 and 7 of the Fragmentation Act spells out to be
mandatory in nature and purpose is obvious as stated
hereinabove.
54. Therefore, if all these factual features coupled with
position of law with regard to Fragmentation Act are applied to
1980 Mah.Law Journal 547
the facts of the case, we are not impressed by the reasons given
by the trial Court in dismissing the suit of the plaintiffs. The
learned trial Court has believed the contents of written
statement and also the revenue records so produced by the
defendants, has ultimately dismissed the suit of the plaintiff.
Unless there is declaration of Sy.No.53 under Fragmentation Act,
provisions of said Act could not have been applied by the
revenue authorities. Therefore, the learned trial Court has
committed illegality in dismissing the suit of the plaintiffs. There
is no proper appreciation of evidence and application of the
proper position of law with regard to Fragmentation Act by the
trial Court.
55. Hence, in view of our discussion made above, the
plaintiffs have established their title over the suit schedule
property by virtue of sale deed dated 30.6.1952 purchased by
their ancestor Shivappa. More so, it is not case of defendant nos.
1 to 13 that, because of cancellation of the sale deed by the
revenue authorities, they have repaid the consideration amount.
No such evidence is brought on record. Either they themselves or
their ancestors ought to have returned the sale consideration
amount to the plaintiffs` ancestors. No such evidence is brought
on record. It is fatal to their case.
56. In view of aforesaid discussion and the reasons stated
thereon, suit of the plaintiffs succeed and deserves to be
decreed. Consequentially, the impugned judgment is liable to be
set aside.
57. Accordingly, points raised are answered in favour of
the plaintiffs.
58. Resultantly, we pass the following:
ORDER
(i) Appeal filed by appellants-plaintiffs is
allowed.
(ii) Judgment and Decree passed by the III
Addl.Sr.Civil Judge and CJM, Dharwad in OS
94/2010 dated 26.4.2016, is hereby set
aside.
(iii) Suit of the plaintiffs in OS NO.94/2010 is
decreed.
(iv) It is declared that the plaintiffs are the
absolute owners of suit schedule property
being legal heirs of late Shivappa who
purchased suit schedule property under
registered sale deed dated 30.6.1952.
(v) Consequentially, defendants their men,
agents etc., are hereby are restrained from
obstructing the peaceful possession and
enjoyment of suit schedule property by the
plaintiffs.
(vi) No order as to costs.
(vii) There shall be decree in the above terms.
Sd/-
JUDGE
Sd/-
JUDGE
Sk/-
