Karnataka High Court

Sanna Hanamanthu S/O Late Edappa vs The State Of Karnataka on 4 December, 2023

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                                                    NC: 2023:KHC-K:8989
                                                     RSA No. 200315 of 2015




                              IN THE HIGH COURT OF KARNATAKA
                                     KALABURAGI BENCH

                          DATED THIS THE 4TH DAY OF DECEMBER, 2023

                                           BEFORE

                              THE HON'BLE MRS JUSTICE M G UMA

                        REGULAR SECOND APPEAL NO.200315 OF 2015
                                      (DEC/INJ)

                   BETWEEN:

                   1.   SANNA HANAMANTHU S/O LATE EDAPPA
                        AGE: 69 YEARS, OCC: AGRICULTURE
                        R/O: MADDIPET, RAICHUR-584102.

                   2.   VENI W/O THIMAREDDY
                        D/O NARASAREDDY
                        AGE: 32 YEARS, OCC: HOUSEHOLD
                        R/O: MADDIPET, RAICHUR-584102.

                   3.   INDIRAMMA W/O THIMAREDDY
                        D/O NARASASREDDY
                        AGE: 29 YEARS, OCC: HOUSEHOLD
                        R/O: MADDIPET, RAICHUR-584102.
Digitally signed
by SHILPA R
TENIHALLI
Location: HIGH                                                ...APPELLANTS
COURT OF
KARNATAKA          (BY SRI AJAYKUMAR A. K., ADVOCATE)

                   AND:

                   1.   THE STATE OF KARNATAKA
                        REPRESENTED BY THE DEPUTY COMMISSIONER
                        RAICHUR-584101.

                   2.   THE EXECUTIVE ENGINEER
                        IRRIGATION DEPARTMENT,
                        NO.5, CENTRAL DIVISION,
                        YARAMARAS CAMP, RAICHUR-584101
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                                 NC: 2023:KHC-K:8989
                                  RSA No. 200315 of 2015




3.   THE TAHASILDAR
     RAICHUR-584101.

4.   PEDDANNA @ DODDA HANAMANTHU
     S/O LATE EDAPPA
     AGE: 64 YEARS, OCC: AGRICULTURE
     R/O: MADDIPET, RAICHUR-584102.

5.   NALLA REDDY S/O LATE EDAPPA
     AGE: 54 YEARS, OCC: AGRICULTURE
     R/O: MADDIPET, RAICHUR-584102.

6.   NARASIMLU S/O LATE EDAPPA
     AGE: 52 YEARS, OCC: AGRICULTURE
     R/O: MADDIPET, RAICHUR-584102.

7.   GANGAMMA W/O NARASAREDDY
     AGE: 61 YEARS, OCC: HOUSEHOLD
     R/O: MADDIPET, RAICHUR-584102.
                                         ...RESPONDENTS

(BY SRI RAJKUMAR A. KORWAR HCGP FOR R1 TO R3;
SRI VISHWANATH RAMPURE AND SRI VENUGOPAL, ADVS. FOR
R6; R4, R5 AND R7 ARE SERVED)

      THIS RSA IS FILED U/S 100 OF CPC, PRAYING TO ALLOW
THE APPEAL BY SETTING ASIDE THE JUDGMENT AND DECREE
DATED 26.11.2014 PASSED IN O.S. NO.73/2011 BY THE PRL.
SENIOR CIVIL JUDGE AND CJM RAICHUR AND WHICH IS
CONFIRMED IN R.A. NO.3/2015 BY THE II ADDL. DIST. AND
SESSIONS JUDGE, RAICHUR VIDE JUDGMENT AND DECREE
DATED 26.03.2015 AND CONSEQUENTLY DECREE THE SUIT OF
THE PLAINTIFFS, IN THE INTEREST OF JUSTICE AND EQUITY.


      THIS APPEAL COMING ON FOR ADMISSION, THIS DAY,
THE COURT DELIVERED THE FOLLOWING:
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                                      NC: 2023:KHC-K:8989
                                        RSA No. 200315 of 2015




                          JUDGMENT

Though the matter is listed for admission, with the

consent of learned counsel for the parties, it is taken up for

final disposal.

2. Plaintiff Nos.2, 6 and 7 in O.S.No.73/2011 on the

file of the Principal Senior Civil Judge and CJM at Raichur

(hereinafter referred to as 'Trial Court' for brevity) are

impugning the judgment and decree dated 26.03.2015

dismissing the suit for declaration, permanent injunction and

for rectification of the revenue records, which was confirmed in

R.A.No.3/2015, on the file of the II Additional District and

Sessions Judge at Raichur (hereinafter referred to as 'First

Appellate Court' for brevity) by dismissing the appeal.

3. For the sake of convenience, the parties are

referred to as per their ranking before the Trial Court.

4. Brief facts of the case are that, the plaintiffs have

filed the suit O.S.No.73/2011 against the defendants seeking

declaration of their title and for permanent injunction from

interfering with their possession and enjoyment and also for

rectification of the revenue records in respect of land bearing

NC: 2023:KHC-K:8989

Survey No.256, measuring 5.24 acres out of 18.24 acres,

situated at Pothgal village of Raichur taluka and district

(hereinafter referred to as 'suit property for brevity).

5. It is contended by the plaintiffs that the suit

property is belonging to one Eshwarappa S/o. Narasappa and

the revenue records were standing in his name. After the

death of Eshwarappa, the revenue records were mutated in the

name of his two sons - Hanumantha and Tippayya. Both of

them have died. Hanumantha left behind him his two sons -

Edeppa and Tayanna. Edeppa died leaving behind him his four

sons i.e, Peddanna @ Dodda Hanumantha, Sanna Hanumanthu,

Nalla Readdy and Narasimalu, who are plaintiff Nos.1 to 4.

Tippayya died leaving behind him his son Narasreddy, who also

died leaving behind him his wife Gangamma, who is plaintiff

No.5 and two daughters - Veni and Indiramma i.e., plaintiff

Nos.6 and 7. Therefore, it is contended that the plaintiffs have

inherited the suit property from their ancestors.

6. It is contended that the defendants have acquired

13 acres of land out of Survey No.256 by issuing the

notification dated 12.03.1948. The remaining extent of 5.24

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acres of land was in possession and enjoyment of the plaintiffs,

which is described as the suit property. However, the revenue

records in respect of the entire 18.24 acres of land in Survey

No.256 were mutated in the name of the Government without

any basis. During January, 2011, the defendants made an

effort to dispossess the plaintiffs and therefore, the plaintiffs

issued legal notice dated 09.02.2011 under Section 80 of the

Civil Procedure Code (for short 'CPC'). Defendant No.2 issued

the reply dated 05.03.2011 furnishing the copies of the

documents. As per the said documents, the suit property is

never acquired and it was in possession of the plaintiffs.

Therefore, the plaintiffs prayed for declaration, permanent

injunction and rectification of the revenue records.

7. The defendants never filed their written statement

even though represented by an advocate.

8. Plaintiff No.4 examined himself as PW.1 and got

marked Exs.P1 to P16. The defendants have not led any

evidence. The Trial Court after taking into consideration all

these materials on record dismissed the suit of the plaintiffs

with costs. Being aggrieved by the same, plaintiffs have

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preferred R.A.3/2016. The First Appellate Court on re-

appreciation of the materials on record dismissed the appeal by

confirming the impugned judgment and decree passed by the

Trial Court. Being aggrieved by the same, plaintiff Nos.2, 6 and

7 are before this Court.

9. Heard learned counsel for the appellants/plaintiff

Nos.2, 6 and 7, learned High Court Government Pleader for

respondent Nos.1 to 3 and learned counsel for respondent

Nos.6.

10. Learned counsel for the appellants contended that

Exs.P15 and 16 are the copies of the order passed by the

Special Land Acquisition Officer at Raichur (for short 'SLAO')

and its translation copy, which disclose that only 13 acres of

land was acquired by the SLAO and therefore, the remaining

5.24 acres of land described as suit property, remained with

the plaintiffs. This fact is ignored by both the Trial Court as

well as the First Appellate Court and dismissed the suit without

any basis. Therefore, he prays for setting aside the impugned

judgment and decree passed by the Trial Court and the First

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Appellate Court by decreeing the suit of the plaintiffs as prayed

for.

11. Per contra, learned High Court Government Pleader

opposing the appeal submitted that the concurrent finding of

facts is recorded by the Trial Court as well as the First Appellate

Court and there are no reasons to interfere with the same.

Accordingly, prays for dismissal of the appeal.

12. It is the contention taken by the plaintiffs that

18.24 acres of land in Survey No.256 of Pothgal village was

owned by their ancestors and out of the same, only 15 acres of

land was acquired by issuing notification by the SLAO.

Therefore, it is the contention of the plaintiffs that remaining

5.24 acres of land described as suit property is continued to be

in possession of the plaintiffs from their ancestors.

13. It is pertinent to note that Ex.P2 is the legal notice

dated 09.02.2011 said to have been issued by the plaintiffs to

the defendants calling upon them to rectify the record of rights

in respect of 13 acres of land in Survey No.256 of Pothgal

village, as they are the owners in possession of the

same.Apparently, Ex.P2 is the legal notice got issued as

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required under Section 80 of CPC. As per Section 80 of CPC,

no suit shall be instituted against the Government until

expiration of two months after issuance of notice in writing,

stating cause of action, name, description, place of residence of

the plaintiff and the relief, which the plaintiff claims.

14. According to the plaintiffs, they have issued Ex.P2

in compliance of Section 80 of CPC, but, as per Ex.P2, out of

total extent of 18.24 acres in Survey No.256, the plaintiffs are

in possession and enjoyment of 13 acres of land, whereas, the

SLAO has acquired 5.24 acres of land. Therefore, the plaintiffs

sought for rectification of the record of rights by showing the

names of the plaintiffs in respect of 13 acres of land in Survey

No.256 of Pothgal village. But, the contention of the plaintiffs

before the Court in their plaint is quite opposite where they

contend that out of 18 acres of land, 13 acres of land was

acquired by the SLAO and the plaintiffs are in possession of

5.24 acres of land and they are seeking the relief against the

defendants in respect of the same. But, till date no such notice

as required under Section 80 of CPC was issued in respect of

the suit property measuring 5.24 acres of land in Survey

No.256 of of Pothgal village.

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15. The plaintiffs have produced Exs.P1, P7 to P14,

which are the revenue records and all these documents in

respect of 18.24 acres of land stands in the name of the

Government. Under such circumstances, there is non

compliance of requirement of Section 80 of CPC and therefore,

the plaintiffs are not entitled for any relief.

16. I have gone through the impugned judgment and

decree passed by the Trial Court and the First Appellate Court.

Both the Courts have considered the materials on record and

recorded the concurrent finding of facts. I do not find any

reason to interfere with the same. More over, no substantial

question of law would arise for consideration of this Court.

Hence, I am of the opinion that the appeal is liable to be

dismissed. Accordingly, I proceed to pass the following:

ORDER

(i) The appeal is dismissed with costs.

(ii) The judgment and decree dated 26.11.2014

passed in O.S.No.73/2011 on the file of the learned

Principal Senior Civil Judge and CJM at Raichur and

the judgment and decree dated 26.03.2015 passed