Hanmantappa S/O Sharnappa Gangashree ... vs Prabhakar S/O Gundappa Atnoor And Ors
2023 Latest Caselaw 9260 Kant

Karnataka High Court

Hanmantappa S/O Sharnappa Gangashree ... vs Prabhakar S/O Gundappa Atnoor And Ors on 5 December, 2023

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                                                       RSA No. 7271 of 2012




                              IN THE HIGH COURT OF KARNATAKA
                                     KALABURAGI BENCH

                          DATED THIS THE 5TH DAY OF DECEMBER, 2023

                                           BEFORE

                              THE HON'BLE MRS JUSTICE M G UMA

                   REGULAR SECOND APPEAL NO.7271 OF 2012 (DEC/INJ)

                   BETWEEN:

                   1.   HANMANTAPPA
                        S/O SHARNAPPA GANGASHREE,
                        AGED: 54 YEARS, OCC: BUSINESS,
                        CTS NO. 402, OPP: CENTRAL WAREHOUSE
                        CORPORATION, NEHRU GUNJ,
                        GULBARGA-585104.

                   2.   VEERUPAKSHAPPA
                        S/O SHARNAPPA GANGASHREE
                        AGED: 51 YEARS, OCC: BUSINESS,
                        CTS NO.402, OPP: CENTRAL WARE HOUSE
                        CORPORATION, NEHRU GUNJ,
                        GULBARGA-585104.
Digitally signed
by SWETA                                                       ...APPELLANTS
KULKARNI           (BY SMT. HEMA L KULAKARNI, AND
Location: HIGH
COURT OF               SRI MANJUNATH GINNI, ADVOCATES)
KARNATAKA
                   AND:

                   1.   PRABHAKAR
                        S/O GUNDAPPA ATNOOR
                        AGED: 66 YEARS, OCC: BUSINESS,
                        R/O: H.NO.71101/38/E/2, BANK COLONY,
                        NEHARU GUNJ, GULBARGA-585104.

                   2.   THE COMMISSIONER,
                        CORPORATION OF GULBARGA
                        GULBARGA-585102.
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                                         NC: 2023:KHC-K:9004
                                             RSA No. 7271 of 2012




3.    THE CITY SURVEY OFFICER,
      ASST. DIRECTOR OF LAND RECORDS,
      OFFICE OF CITY SURVEY,
      GULBARGA-585102.
                                                    ...RESPONDENTS

(BY SRI PRAMOD N. KATHAVI, SR. COUNSEL FOR
 SRI BIRADAR SADANAND MALLANGOUDA,
 SRI ANIL S. JOLDAPAGI, SRI BHAVIMANI APPARAYA AND
 SRI SANTOSH A. ADVS. FOR R1;
 SRI D.P. AMBEKAR, ADV. FOR R2;
 SRI RAJKUMAR A. KORWAR, HCGP FOR R3)

     THIS REGULAR SECOND APPEAL IS FILED U/S. 100 OF
CPC, PRAYING TO SET ASIDE THE JUDGMENT AND DECREE
PASSED IN R.A.NO. 97 OF 2010, DATED: 19.04.2012 ON THE
FILE OF PRL. CIVIL JUDGE (SR.DN.) AT GULBARGA
CONFIRMING THE JUDGMENT AND DECREE PASSED BY THE
TRIAL COURT IN O.S. NO. 293 OF 2006 ON DATED:
13.07.2010 ON THE FILE OF I ADDL. CIVIL JUDGE (JR.DN.) AT
GULBARGA TO MEET THE ENDS OF JUSTICE WITH COSTS.

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

                            JUDGMENT

Defendant Nos.1 and 2 in O.S.No.293/2006 on the file of

the learned I Additional Civil Judge (Jr.Dn.), Gulbarga

(hereinafter referred to as 'the trial Court' for brevity), are

impugning the judgment and decree dated 19.04.2012 passed

in R.A.No.97/2010 on the file of the learned Principal Senior

Civil Judge, Gulbarga, (hereinafter referred to as 'the First

Appellate Court' for brevity), allowing the appeal and setting

aside the judgment and decree dated 13.07.2010 passed by

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the trial Court and decreeing the suit of the plaintiff, declaring

that assignment of CTS No.403/1 and treating it as government

lane is illegal, unauthorized and restraining defendant Nos.1

and 2 from opening the doors or windows in CTS No.403,

situated in Vakkalgera Village, Nehru Gunj, Gulbarga.

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

referred to as per their rank and status before the Trial Court.

3. Brief facts of the case are that, the plaintiff filed the

suit O.S.No.293/2006 against defendant Nos.1 to 4 seeking

declaration that assignment of CTS No.403/1 out of the

property belonging to the plaintiff, measuring 4.5 mts X 99 mts

and treating it as government lane is illegal and unauthorized

and also for permanent injunction restraining defendant Nos.1

and 2 from opening the doors or windows in the property of the

plaintiff i.e., CTS No.403, sheet No.8, block No.2, measuring

1766.5 sq.mt. in Sy.No.9 of Vakkalgera Nehru Gunj, Gulbarga

with the boundaries mentioned therein (hereinafter referred to

as 'suit property' for brevity).

4. It is contended by the plaintiff that originally the

suit property was belonging to Qazi Yusufuddin S/o. Qazi Mohd.

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Walluddin who was inamdhar of the land bearing Sy.No.9 of

Vakkalgera village. Said Qazi Yusufuddin executed a

permanent lease deed in the year 1340 fasli in favour of

Shankar, S/o. Sanganna Atnoor, who is the ancestor of the

plaintiff. Subsequently, the said property changed hands by

division in the joint family and it had fallen to the share of the

plaintiff and two other branches represented by Balachandra

Atnoor and Srinivasa Rao Atnoor.

5. It is further contended that Sangappa Atnoor the

brother of Nagappa was allotted half share in the original

property and the remaining half share was allotted to the share

of Nagappa which was succeeded by his two sons Saibanna and

Shankar. Therefore, each one of them got 1/4th share in the

original property. The said property was in turn succeeded by

their sons Gundappa and Balachandra and the portion of the

property which are fallen to the share of Nagappa was

succeeded by his only son Ramanna. It was again succeeded

by his two sons Nagappa and Srinivasa.

6. It is further contended that the plaintiff purchased

1/4th share allotted to his father Gundappa and another 1/4th

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share which devolved on Nagappa, S/o. Ramanna under two

registered sale deeds dt.21.02.1980 and 19.05.1980

respectively. Accordingly, the city survey records were

mutated in his name in respect of CTS No.403 which is the suit

property on the basis of the sale deeds and khatha stood in his

name.

7. It is contended that the land bearing CTS No.402

belongs to defendant Nos.1 and 2, situated on the southern

side of the suit property. There was no lane in between the

land of the plaintiff and the defendants. The plaintiff and the

defendants were having access to the property only from the

eastern side i.e., from Gulbarga - Humanabad road.

8. It is further contended that the plaintiff had put

barbed wire fence surrounding his property to protect the

same. Defendant Nos.1 and 2 have removed a portion of the

said fence during September 2006 and they started to demolish

the northern common wall which was in existence since 1960,

which was facing the suit property and started to create

opening in the said wall. The plaintiff found the action of

defendant Nos.1 and 2 suspicious, questioned their high

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handed acts, who informed the plaintiff that the land in

between CTS No.402 and CTS No.403 is a government land and

justified their high handed acts. Immediately, the plaintiff

approached the Sanitary Inspector and also the Commissioner

of City Corporation, Gulbarga. It was learnt by the plaintiff that

the defendants are carrying on the activity illegally without any

permission from Gulbarga Development Authority.

9. The plaintiff approached the City Survey Office to

verify the documents and was shocked to know that behind his

back, city survey records were manipulated without issuing any

notice. They managed to create a lane by assigning separate

CTS No as 403/1. It was clear that the defendants in collusion

with the City Survey officials, managed to concoct the

documents referring to the lane which was never in existence.

Assignment of CTS No.403/1 to the portion of the property

belonging to the plaintiff was high handed act of the defendants

and without any legal sanction.

10. It is contended that the original city survey records

disclose that there was no government lane that was in

existence between CTS No.402 and 403 which was newly

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shown as CTS No.403/1, measuring 4.5 mts X 99 mts. This

manipulation of records was only in the year 2004 behind the

back of the plaintiff, with an intention to help the defendants to

create openings in the common northern wall and to have an

access from the northern portion of the property of the

defendant Nos.1 and 2. All such illegal manipulation carried

out by CTS officials was solely on the representation submitted

by the defendants. No procedure as contemplated under law

for formation of lane or for assigning new CTS number or to

mutate or sub divide the original CTS number was followed.

Therefore, it is contended that the portion of the land now

shown as CTS No.403/1 did not exist at any point of time and

do not vest with city corporation as it is part and parcel of the

suit property.

11. In view of the above, the plaintiff sought for

declaration that assignment of CTS No.403/1 out of the suit

property belonging to the plaintiff, measuring 4.5 mts X 99 mts

and treating it as government lane is illegal and unauthorized.

He also sought for perpetual injunction restraining defendant

Nos.1 and 2 from illegally opening the doors or windows

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towards CTS No.403 which is fully described as the suit

property.

12. Defendant Nos.1 and 2 have filed their written

statement denying the contentions taken by the plaintiff. The

description of the suit property and the boundaries mentioned

in the plaint are all denied. Inheritance of the property as

stated in the plaint and purchase of a portion of the property

described as the suit property by the plaintiff is also denied.

13. It is contended that in between the land bearing

CTS No.403 and the land of defendant Nos.1 and 2, there

exists a lane having width of 15 feet. It is contended that the

grand mother of defendant Nos.1 and 2 by name Eramma,

W/o. Hanumanthappa Ganseve had purchased the open land

measuring 200/129 feet under the registered sale deed from its

earlier owner Madiwalappa Sulegar and others. The land

belonging to the defendants was assigned CTS No.402 and a

lane was in existence on the north of house property of the

defendants. It is denied that access to the said property of the

defendants was only from the eastern side i.e., from

Humanabad - Gulbarga Road. But it is contended that access to

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their house was on the northern side, facing to 15 feet wide

lane which was in existence from time immemorial. There was

a door in the said wall facing the lane, which was removed for

the purpose of replacing it with the shutter. Defendants have

not involved in any high handed acts as contended by the

plaintiff. The other door which was also there in the northern

wall of defendants' house was closed by their father as the

same was having opening to the godown. But however, the

signs of existence of the said door was visible in the wall.

14. It is further contended that after purchase of the

property by the grand mother of defendant Nos.1 and 2, She

applied for permission for construction of the house in the year

1962 to the Municipality and obtained the approved plan for the

proposed construction. In the said plan, there is reference to

the lane which is in question. The existence of the lane was

within the knowledge of the plaintiff. The lane was referred to

even in the tonch map or the survey map maintained in city

survey office. There was no manipulation or concoction of any

public records. The very same lane which was in existence

from time immemorial was being used by the general public as

approach road to reach the burial ground which was situated

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behind the property of the defendants. In city survey office,

after completing the formalities and also with notice to the

neighbours, assigned CTS No.403/1 to the existing lane, which

was also within the knowledge of the plaintiff. Therefore, it is

contended that the lane in CTS No.403/1 is a government lane,

existing from time immemorial and it was never part of CTS

No.403. It is denied that there was a common wall on the

northern side of defendants' property and the defendants for

the first time tried to open the door in the said wall which gave

cause of action to the plaintiff. Hence, it is prayed that the suit

of the plaintiff be dismissed with cost.

15. On the basis of these pleadings, the following issues

were came to be framed:

"01. Whether the description of the suit property is correct?

02. Whether the plaintiff proves that CTS No.403/1 is measuring 4.5 meters x 99 meters?

03. Whether the plaintiff proves that CTS No.403/1 is part and parcel of suit property?

04. Whether the plaintiff proves that the CTS No.403/1 is illegally and unauthorisedly assigned as Govt. lane?

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05. Whether the plaintiff proves that there is a common wall in existence since 1960 between suit property and CTS No.402?

06. Whether the defendants No.1, 2 prove that there is a lane having a width of 15 feet towards North of their house and that wall of their house is their own and exclusive wall?

07. Whether plaintiff proves that on 9.10.06 the defts. No.1 and 2 tried to open doors illegally in the common wall between suit property and CTS No.402?

08. Whether the plaintiff is entitled for the reliefs?

09. What order or decree?"

16. The plaintiff examined himself as PW-1, examined

PW-2 and got marked Exs.P1 to P20 in support of his

contention. Defendant No.2 examined himself as DW-1 and got

marked Exs.D1 to 14 in support of his defence. The trial Court

after taking into consideration all these materials on record,

answered issue No.1 in the affirmative, issue Nos.2 to 8 in the

negative and accordingly, dismissed the suit of the plaintiff with

cost.

17. Being aggrieved by the same, the plaintiff has

preferred R.A. No.97/2010 before the First Appellate Court.

The First Appellate Court on re-appreciation of the materials on

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record, allowed the appeal and decreed the suit of the plaintiff

as prayed for, by setting aside the judgment and decree passed

by the trial Court.

18. Being aggrieved by the same, defendant Nos.1 and

2 are before this Court.

19. Heard Smt. Hema L. Kulkarni, learned counsel for

the appellants/defendant Nos.1 and 2, Sri Pramod N. Kathavi,

learned Senior Advocate for Sri Biradar Sadanand and Sri

Santosh A., learned counsel for respondent No.1/plaintiff, Sri

D.P. Ambekar, learned counsel for respondent No.2 and Sri

Rajkumar A. Korwar, learned High Court Government Pleader

for respondent No.3. Perused the materials including the trial

Court and the First Appellate Court records.

20. Learned counsel for the appellants/defendant Nos.1

and 2 contended that the plaintiff has failed to prove any of the

contentions taken in the plaint. His contention that originally

the property was belonging to one Qazi Yusufuddin as inamdhar

and he gave the land in favour of Shankar under the

permanent lease deed is not proved. There are absolutely no

materials to probabilise his contentions. The contention of the

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plaintiff that he purchased 1/4th share from Nagappa and 1/4th

share from Gundappa under Exs.P11 and 12 do not probabilise

his contention that the same refers to the suit property.

21. Learned counsel further submitted that Ex.D4 is the

Notification issued by the City Corporation, Gulbarga which is

dated 12.08.1963. There is reference to the lane on the

northern side of the defendants property at an undisputed point

of time. Exs.D5 and 6 are the plans to show the building

proposed to be constructed by Eramma which was submitted to

the Municipal Corporation. In both these plans, there is

reference to the lane to the north of her property. Ex.D7 is the

notice issued by city survey office dated 10.12.2003 to

undertake survey. Inspite of service of notice, the plaintiff has

not participated in the survey, nor challenged the same. The

said survey was undertaken as per the letter dated 09.07.2003

which is marked as Ex.P5. The City Survey officials carried out

survey and assigned new number as CTS No.403/1 to the lane

which was in existence from time immemorial. The plaintiff has

not chosen to challenge the said order passed by the city

survey official. But on the other hand, he rushed to the Court

seeking declaration and injunction. The trial Court on

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appreciation of the materials on record, rightly held that the

plaintiff has not proved the permanent lease refer to in the

plaint. The plaintiff has not produced any document to trace his

title. The trial Court has given reasons for not accepting Ex.P13

map produced in FDP No.8/1978, as the lane in question was

never the subject matter in the said final decree proceedings.

The trial Court also appreciated Exs.D4 to 7 as clinching

documents to prove existence of the lane from time

immemorial and rightly dismissed the suit of the plaintiff. The

First Appellate Court on the contrary, placed reliance on Ex.P13

to decree the suit of the plaintiff.

22. Learned counsel further submitted that the plaintiff

is calling in question correctness of the order passed by the

revenue officials. Under Section 61 of the Karnataka Land

Revenue Act, 1964 (hereinafter referred to as the 'KLR Act' for

brevity) the jurisdiction of the Civil Court is excluded as it is

only the revenue Court which shall have jurisdiction to

determine, decide or dispose of any such matter under the KLR

Act. As per Section 63 of the KLR Act, the plaintiff has to

exhaust his remedy by preferring an appeal against the order

passed by the revenue officer and the Civil Court will not have

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jurisdiction to entertain the contention raised by the plaintiff. It

is therefore contended that the First Appellate Court committed

an error in deciding the suit when the same is not maintainable

as the remedy available for the plaintiff is to approach the

revenue Court by challenging the order of the City Survey

officials.

23. Learned counsel further contended that the First

Appellate Court also committed an error to proceed to decree

the suit without taking into consideration the failure of the

plaintiff to prove his contention as taken in the plaint. Hence,

she prays for allowing the appeal and to restore the judgment

and decree passed by the Trial Court by setting aside the

impugned judgment and decree passed by the First Appellate

Court

24. Per contra, learned Senior Advocate for the

respondent/plaintiff opposing the appeal submitted that the

plaintiff has sought for a specific relief of declaration that

assignment of CTS No.403/1 out of the property belonging to

the plaintiff, measuring 4.5X99 metres and treating it as

government lane is illegal and unauthorized. The said prayer

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was only against defendant Nos.3 and 4. Defendant Nos.3 and

4 have never raised their objection against granting such

reliefs. They never contested the suit. Defendant Nos.1 and 2

have no locus standi to question granting of such reliefs in

favour of the plaintiff against defendant Nos.3 and 4.

25. Learned Senior Advocate further submitted that

only the relief of perpetual injunction was sought against

defendant Nos.1 and 2 and their defence should have been

restricted only for grant of such relief of perpetual injunction.

26. Learned Senior Advocate contended that the

plaintiff has produced the sketch along with the plaint showing

the suit property belonging to the plaintiff which he purchased

in two bits under two separate sale deeds Exs.P11 and 12. The

land belonging to Sharanaiah Swami Puranik is situated to the

eastern side of the suit property. Gulbarga to Humanabad Main

road is situated to the south of the suit property. There is a

common wall and it is compound of Basavanappa which is the

property now claimed by defendant Nos.1 nd 2. Since the

defendants started removing the compound wall for the

purpose of opening doors in the same, the suit was came to be

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filed against them seeking perpetual injunction. Since

defendant Nos.3 and 4 assigned new number i.e., CTS

No.403/1 to the portion of the suit property and referred it to

be a government lane by concocting records in collusion with

city survey officials, behind back of the plaintiff, declaration

against them was sought.

27. Learned Senior Advocate would contend that CTS

numbers are given to identify the private properties of the

individuals. Public road and lanes were never identified with

CTS numbers. Even though it is contended by defendant Nos.1

and 2 that the lane in question was in existence from time

immemorial, there is absolutely no document which is worth

believing to show existence of such lane. On the other hand,

the documents produced by the plaintiff including Ex.P13 an

undisputed document i.e., map and report submitted in FDP

No.8/1978, there is no reference to any lane now referred to as

government lane.

28. Learned Senior Advocate submitted that, Ex.P5 is

the letter dated 09.07.2003 issued by defendant No.1 to ADLR

requesting to survey the land and create a lane in CTS No.403.

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Acting on this representation submitted by defendant No.1, the

City Survey officials obliged to concoct Exs.P6 to 9 without

following the procedure contemplated under law.

29. He further submitted that even though it is

contended that a notice was issued to the plaintiff as per Ex.D7

on 10.12.2003, no materials are placed before the Court to

demonstrate service of said notice on the plaintiff. No

panchnama was admittedly drawn and no order whatsoever

was passed for conducting survey. No survey map or report is

submitted by the City Survey officials. But they managed to

concoct the entry dated 30.01.2004 as per Ex.P6 and referring

the owner of CTS No.402 as the reason for declaring the

government lane in CTS No.403.

30. Learned Senior Advocate submitted that, as per

Ex.P6, on 07.03.1992 the name of the plaintiff is shown as one

of the holder of the property. But, no notice was served on him

and he was not a party to any of the proceedings either to hold

survey or to declare the portion of his property as government

lane. There is absolutely no reason as to why the so called

government lane was formed in the private land i.e., in

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Sy.No.403, by sub dividing the same as CTS No.403/1 as per

Ex.P7.

31. Learned Senior Advocate further submitted that,

Exs.P8 and 9 - the tonch maps issued by ADLR office make the

position very clear that the so called government lane in CTS

No.403/1 was carved out of CTS No.403 which admittedly

belongs to the plaintiff. When the title deeds of the plaintiff

i.e., Exs.P11 and 12 are considered in the light of Ex.P9 - the

field book detail regarding mapping of city survey of Gulbarga,

makes the position very clear that the said portion of the land

identified as CTS No.403/1 was carved out of CTS No.403

belonging to the plaintiff.

32. Learned Senior Advocate contended that Ex.P10 is

the objection raised by the plaintiff addressed to the

Commissioner of City Corporation against the defendants, who

ventured to open the common wall and construction of shop

premises on the northern portion of CTS No.402 illegally. Since

no action whatsoever was taken on the said letter dated

02.09.2006, the plaintiff has rushed to the Court seeking

declaration and permanent injunction.

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33. Learned counsel would contend that as per Ex.P11

dated 21.02.1980, the property purchased by the plaintiff

measures 49 feet North to South, on the eastern side and 52

feet on the western side. The total area purchased under

Ex.P11 is 9,595 sq.ft. The southern boundary of the said

property is mentioned as compound of Basavanappa Gangseri

(Chandra Mohan). Even at an undisputed point of time i.e.,

during 1980 when the property was purchased, there was no

reference to any lane on the southern side of the property

which was purchased by the plaintiff. The sketch appended to

Ex.P11 also makes the position very clear as there was no

reference to the lane on any portion of the land that was

purchased by the plaintiff including on the southern side.

34. He further submitted that similarly Ex.P12 is the

other sale deed under which the plaintiff has purchased the

total area measuring 2,399 sq.ft. and the boundaries are

mentioned similar to the boundaries mentioned in Ex.P11.

Ex.P12 is also appended with a sketch which refers to the

southern boundary as common wall between the property

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purchased by the plaintiff and Basavanappa Gangseri (Chandra

Mohan).

35. Learned Senior Advocate contended that Ex.P13 is

the final decree in original suit No.1/1/1959-60 and FDP

No.8/1978. Final decree was drawn on 28.12.1994 on the

basis of the Commissioner's report and the sketch. Defendant

No.1 Qazi Yusufuddin referred to by the plaintiff in the plaint

was defendant No.1 in the said suit and he was allotted with

CTS Nos.401 to 405, totally measuring 6,775 sq.mt. Ex.P13(a)

is the sketch drawn by the Court Commissioner in respect of all

those properties. As per this document even at an undisputed

point of time, it do not refer to the so called lane, now referred

to by the defendants. Defendant Nos.1 and 2 who claim to be

the owners of CTS No.402 which is the subject matter of

Ex.P13 cannot question the validity of the same.

36. The photographs produced by the plaintiff disclose

that defendant Nos.1 and 2 have recently made an opening in

the disputed wall to fix shutters and that probablises the

contention of the plaintiff that the defendants are claiming for

forming new lane on the northern portion. Even though the

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defendants contended that the lane was in existence from time

immemorial and there were doors in the wall, the same is not

probablised.

37. Learned Senior Advocate contended that even

though the defendants have produced Exs.D5 & 6 to prove

existence of the lane from the time immemorial, they are not

authentic documents and they do not refer either to the

property of the plaintiff or defendant Nos.1 and 2. Even if it is

to be considered that the proposed construction shown therein

was in the property of defendant Nos.1 and 2, there is no

reference to the property now belonging to the plaintiff in the

said sketch. On the other hand, immediately to the north of

defendants' property, proposed portion is shown as measuring

15 feet in width and immediately thereafter, the open plot

belonging to Puranik is shown. There is no explanation as to

why the property bearing CTS No.403 now belonging to the

plaintiff is not shown either in Ex.D5 or in any other documents

relied on by the defendants.

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38. It is stated that Exs.D5 and 6 are the documents

produced by defendant Nos.1 and 2 which will not create any

right in their favour in the property belonging to the plaintiff.

39. Learned counsel further submitted that Exs.D11 and

12 are the sale deeds in urdu language. English translations are

produced as per Ex.D11(a) and 12(a). The measurement of

the property shown in Ex.P11(a) is from East to West 100 feet,

North to South 52 feet and in Ex.D12 East to West 100 feet and

North to South 51 feet. These documents do not refer to any

survey number or plot number to identify the property but

strangely the property that was claimed by defendant Nos.1

and 2 in the written statement was measuring 200X120 feet

which do not correspond with Exs.D11 and 12.

40. Learned Senior Advocate also contended that

defendant Nos.1 and 2 have not examined any of the

independent witnesses to prove existence of the public lane

from time immemorial. Not even a single citizen raised any

dispute nor claimed right over the said public lane at any point

of time. Even defendant Nos.3 and 4 have no defence in their

favour. But, it is only defendant Nos.1 and 2 who are

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contesting the suit contending that the lane in question was in

existence from time immemorial. Even the village map

produced as additional document do not refer to any lane which

was in existence. Under such circumstances, the defence taken

by the defendants is to be rejected.

41. Learned counsel further submitted that the

defendants have not taken any defence that the suit of the

plaintiff is not maintainable in view of Section 61 and 63 of the

KLR Act. No issues were framed in that regard. On the other

hand, the Trial Court held issue No.1 in the affirmative i.e.,

proof of description of the suit property in the plaint. It is for

the first time before this Court it is tried to be contended that

the suit is not maintainable in view of Section 61 and 63 of the

KLR Act. Defendant Nos.3 and 4 have never passed any order.

They have never conducted any survey, nor submitted any

report. Under such circumstances, excluding the jurisdiction of

the Civil Court as provided under Section 61 and 63 of the KLR

Act does not arise.

42. In fact, no substantial question of law would arise in

the present case as the First Appellate Court on proper

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appreciation of the materials on record, categorically held that

the plaintiff is entitled for the relief as prayed for. There are no

reasons to interfere with the same. Hence, he prays for

dismissal of the appeal with cost.

43. This Court vide order dated 04.03.2013 framed the

following substantial questions of law:

"i) Whether the judgment and decree passed by the first appellate Court is substantial in the absence of appreciation of legal status of permanent Lessee and ownership related to suit property assigned as CTS bearing No.403, pleaded by the plaintiff?

ii) Whether the first appellate Court was right in dealing only the evidence and relying upon pertaining to property CTS bearing No.403/1, avoiding to look in to or to discuss the evidence, pertaining to the suit property i.e., CTS No.403, as pleaded in para two of plaint?

iii) Whether the first appellate Court was right in not appreciating judiciously the admissions made by plaintiff as pointed out by the trial court in its judgment?"

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44. Learned counsel for the appellants submitted a

memo at the time of addressing arguments seeking for framing

additional substantial questions of law as under:

"A) Whether or not the First Appellate Court right in decreeing the suit in the absence of the title deeds, especially when the link document of alleged perpetual lease deed executed by the Yousuf Kazi is not produced by the plaintiff, in order to establish the competence (Shankar S/o.Sanganna, Nagappa and Gundayya) to execute sale deed in favour of the plaintiff based on which declaratory relief is sought for? B) Whether or not the First Appellate Court right in deciding the suit when it is not maintainable in view of the special remedy available to the plaintiff under Revenue Act, under which the order passed by revenue Court is final and civil court's jurisdiction is expressly barred U/Sec.61 and 63 of KLR Act?"

45. The proposed additional substantial question of law

No.(A) is covered under the substantial question of law No.(i)

framed by this Court vide order dated 04.03.2013. Hence, I do

not find any reason to frame the said additional substantial

question of law for consideration. However, a new ground is

raised during arguments regarding non-maintainability of the

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suit in view of Section 61 and 63 of the KLR Act. I deem it

appropriate to frame the following additional substantial

question of law:

"Whether the suit of the plaintiff is barred under Sections 61 and 63 of Karnataka Land Revenue Act?"

My answer to the above substantial questions of law

Nos.(i) to (iii) is in the 'Affirmative' and the additional

substantial question of law is in the 'Negative' for the following:

REASONS

46. It is the specific contention of the plaintiff that he is

the owner of the suit property bearing CTS No.403, measuring

1,766.5 sq.mts., situated in Sy.No.9 of Vakkalgera Nehru Gunj

Gulbarga with its boundary on the Southern side: Property in

possession of defendant Nos.1 and 2 and on the Eastern side:

Government Road. To prove his ownership over the suit

property, the plaintiff has produced the sale deeds Exs.P11 and

12 which are dated 21.02.1980 and 19.05.1980. Under

Ex.P11, the plaintiff purchased the plot totally measuring 9,595

sq.ft. i.e., East to West 190 feet, North to South towards East

49 feet and towards West 52 feet. The boundary of the

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property on the southern side is the compound of Sri

Basavanappa Gangseri (Chandra Mohan) and to North; open

land and compound of Sri Sharanayya Swami Puranik.

Similarly, under Ex.P12, the total area purchased was 2,399

sq.ft. i.e., measuring East to West 95 feet and North to South

towards eastern side 24.6 feet and towards west 26 feet.

Again, the southern boundary is the compound wall of

Basavanappa Chandramohan (common) and to the north open

plot of Prabhakar Atnoor. The sketches are appended to the

sale deeds Exs.P11 and 12 referring to the measurement and

the boundaries at an undisputed point of time. There is no

reference to any lane in any of these documents. Even though

the defendants have not admitted the ownership of the plaintiff

over the suit property, they have also not categorically denied

and disputed the ownership of the plaintiff.

47. It is pertinent to note that in the affidavit filed by

defendant No.2 in lieu of examination in chief, he specifically

stated that the suit property (as referring to the lane in

question) is located in between the properties of these

defendants and the plaintiff. Even though it is contended that

the sale deeds produced by the plaintiff do not confer any right,

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title or interest in his favour, there is absolutely no reason

assigned as to why the registered sale deeds do not convey any

right, title and interest in favour of the plaintiff. It is not in

dispute that the sale deeds relied on by the plaintiff were never

challenged by any person concerned. Even the CTS records

pertaining to CTS No.403 stands in the name of the plaintiff.

The Trial Court answered issue No.1 in the affirmative holding

that the description of the property by the plaintiff is correct.

Under such circumstances, I do not find any reason to discuss

further about the ownership of the plaintiff over CTS No.403.

48. Now the question arises as to what was the extent

of the land belonging to the plaintiff in CTS No.403. As per

Exs.P11 and 12 referred to above, the total extent of the land

purchased by the plaintiff under the registered sale deeds is

9,595 sq.ft. + 2,399 sq.ft. The width of the plots East to West

190 feet and North to South towards East 49 feet and West 52

feet. It is stated that the property purchased under Ex.P.12

dated 19.05.1980 falls towards southern side of the property

that was purchased under the sale deed dated 21.02.1980

marked as Ex.P11.

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49. Ex.P1 is the extract from the assessment of

property register for the year 1993-94 standing in the name of

the plaintiff described as open land assessed for tax. Ex.P2 is

the field book of detail mapping city survey of Gulbarga

pertaining to CTS No.403, which was issued on 09.03.1994.

50. Ex.P3 is the extract from the property register card

pertaining to CTS No.403, according to which, the total extent

is 1,766.5 as per entry dated 07.03.1992. There is reference

to the permanent lease by Qazi Yusufuddin in favour of

Shankar Sanganna Atnoor. After his demise, devolved on his

sons Ramanna, Shankrappa and Saibanna. After demise of all

the three sons, mutated half portion in the name of the plaintiff

and one-fourth portion each in the names of Balchandra S/o

Shankrappa Atnoor and Srinivas S/o Ramanna Atnoor. This is

the basis for the plaintiff to claim the suit property measuring

1,766.5 sq.mt., which is supported by the sale deeds Exs.P11

and 12.

51. Ex.P4 is the tonch map pertaining to CTS No.403.

But this sketch do not refer to any measurements. However,

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the road leading towards Humanabad Road is shown. But there

is no reference to any lane now identified as CTS No.403/1.

52. Ex.P5 is the copy of the letter dated 09.07.2003

written by defendant No.1 to the ADLR, Gulbarga, requesting to

sub divide CTS No.403 by identifying the lane as per the

approved sketch of Town Municipality.

53. Ex.P6 is the extract from the property register card

pertaining to CTS No.403 mutating the name of Prabhakar

Atnoor, Balachandra and Srinivas as referred to in Ex.P3.

Further, as per the entry dated 30.01.2004, the owners of CTS

No.402 i.e., defendant Nos.1 and 2 got the approval in respect

of the Government lane and accordingly it was measured and

mutated. Consequently, the said portion of the land is

mentioned as Government lane - public road in the CTS

extract.

54. Ex.P7 is in respect of CTS No.403/1 which was for

the first time sub-divided from CTS No.403 and identified as

government lane (public). Ex.P8 is the tonch map pertaining to

CTS No.403 where CTS No.403/1 was carved on the southern

side of CTS No.403. Ex.P9 is the field book detail mapping City

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Survey of Gulbarga corresponding to Ex.P8 showing CTS

No.403 with the carved out portion on the southern side

identified as CTS No.403/1. It is pertinent to note that the

measurements of CTS No.403 on the western side is shown as

11 ft., whereas on the eastern side 10.5 ft.

55. Ex.P10 is the letter addressed by the plaintiff to the

Commissioner of City Corporation, Gulbarga regarding illegal

opening of compound wall and construction of shops facing

north in CTS No.402 by defendant No.1. The same was

submitted to the office of the Commissioner on 02.09.2006.

56. Ex.P13 is the final decree drawn in FDP No.8/1978

on 28.12.1994 on the basis of the Commissioner's report. The

decree holder in the said suit is Halima Begum, W/o.

Mohammed Ibrahim Khan and defendant No.1 is Kazi

Yousufuddin S/o. Kazi Valiiddin who was referred to in the

plaint by the plaintiff as Inamdhar. As per this document,

defendant No.1 was allotted major part of CTS Nos.401 to 405

total area measuring 6,775 sq.mt shown in yellow colour in the

map that is annexed to the decree. Ex.P13(a) is certified copy

of the map annexed to the decree. In the entire map which

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formed part of the final decree, there is no reference to any

lane attached to CTS No.403. Exs.P16 to 19 are the photos

which disclose that fresh works were undertaken by the side of

a wall by removing a portion.

57. Ex.D1 is the self assessment register dated

17.03.2004 from the assessment register of Gulbarga City

Corporation pertaining to the land belonging to defendant No.1.

The measurement of the property mentioned therein is 18,144

feet.

58. Ex.D2 is the map pertaining to the proposed plan

for construction of compound wall in the land belonging to

Eramma, W/o. Hanmanthappa. On the northern side, there is

reference to 15 feet wide lane and open land. The plan said to

be dated 24.08.1962 and said to have been approved by the

Executive Officer. There is reference to the road leading to

Humanabad Road. But the plan do not refer to any property

number.

59. Ex.D5 is the similar plan approved as per corrected

plan through permission number 239 dated 09.01.1962, issued

by the Executive Officer, City Municipality, Gulbarga. The

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property does not refer to any number to relate it to the

present CTS No.402. But it is stated that it measures 100' x

52', situated at Nehru Gunj Gulbarga, surrounded on North by

15 feet proposed road and thereafter, open plot of Sri Puranik,

East- Humanabad road, South- open plot of Sri Sridhar Rao

Kulkarni and towards west plot of Sri Shivalingappa Sorde.

Ex.P6 is the map showing the alterations in the previous

approved plan and towards North 15 feet lane and neighbors

plot is shown. Again, there is no reference to any property

number.

60. If Ex.D5 is to be considered further, to the further

north of the said proposed lane measuring 15 feet from north

to south, the land belonging to Sri Puranik is shown. It is not

the contention of the defendants at any point of time that to

the north of the so called lane the property of Sri Puranik is

situated. Ex.D4 is the notification dated 12.08.1963 on the

representation given by Eramma for re-construction of the

house where northern boundary is shown as a lane. But

strangely there is no reference to the property number or the

boundaries on the other side of the property to identify the

same. Similarly, in Ex.D6 there is reference to 15 feet lane and

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neighbour's plot on the northern side of the property of

Eramma. Ex.D2 is also a similar building plan belonging to

Eramma of the year 1962. Towards northern side of the

proposed building there is a reference to 15 feet wide lane and

open land. If at all Exs.D2, D4 to D6 are to be taken into

consideration, in support of the contention of defendant Nos.1

and 2, that there exists a public lane measuring 15 feet on the

southern side of CTS No.403 and northern side of CTS No.402

from time immemorial, the said lane should have found a place

in any of the public documents. Even though Exs.D2, D4 to D6

are said to be approved building plan and notification where

there is reference to such a lane on the north of the property of

Eramma, as I have already stated, there is no reference to any

property number. Moreover, there is absolutely no explanation

as to why there is no reference to the land now belonging to

the plaintiff in the said documents but there is reference to the

land of one Puranik which is not reconciling with the defence

taken by the defendants. Under such circumstances, the

defendants should have placed any of the public records

including village map or city survey records which prove the

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existence of the public lane from time immemorial. There is no

such document to which the defendants have laid their hands.

61. Ex.D7 is the notice dated 19.12.2003 issued by the

City Surveyor, Gulbarga to Hanumanthappa i.e., defendant

No.1, Prabhakar- plaintiff, Balachandra and Srinivas and also to

the City Municipality notifying the survey that is proposed to be

undertaken on 30.12.2003 to record the lane in CTS No.403.

The document does not bear the endorsement for having

served the notice on any of the addressees.

62. The plaintiff sought for declaration to the effect that

there is no CTS No.403/1 out of the property belonging to the

plaintiff measuring 4.5 x 99 meters treating it as a Government

lane is illegal and unauthorized. Obviously this declaration is

sought against defendant Nos.3 and 4 who are the

Commissioner of City Corporation, Kalaburagi and City Survey

Officer, Assistant Director of Land Records, office of the City

Survey, Kalaburagi. The grievance of the plaintiff is not against

defendant Nos.1 and 2 for seeking declaration in respect of CTS

No.403/1 measuring 4.5 meters x 99 meters. But it is

specifically against defendant Nos.3 and 4, more particularly,

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against defendant No.4 who issued sketch as per Ex.P8

showing the lane as 403/1 carved out of Sy.No.403 which is

belonging to the plaintiff on the basis of the endorsement dated

30.01.2004 which was sought to be on the basis of the survey

at the instance of defendant Nos.1 and 2 being the owners of

CTS No.402 and declaring that the said portion is a

Government land to be used as public road. Accordingly, Ex.P7

- the Property Register Card in respect of CTS No.403/1

measuring 393.80 meters was drawn along with the sketch

Exs.P8 and P9.

63. It is the contention of the plaintiff that the suit

property bearing CTS No.403 measuring 1766 sq.mts. is his

absolute property and there is no lane running on the south of

the said property. On the other hand, it is the contention of

the contesting defendants that there is a lane running on the

northern side of CTS No.402 and they are entitled to open the

doors or windows in the wall on the northern side. It is

specifically contended by contesting defendants that the lane in

question is a public lane which is in existence from time

immemorial. Defendant Nos.1 and 2 are relying on Exs.D4 to

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D6 to prove the existence of the lane at an undisputed point of

time.

64. When existence of the public lane from time

immemorial as contended by the defendants is not proved, for

forming a new road/street/lane there is separate procedure

provided under the Karnataka Municipal Corporations Act, 1976

(hereinafter referred to as the 'KMC Act' for brevity). Section

270 of the KMC Act deals with acquisition of land for widening,

opening, extending or otherwise improving the public street or

for making any new public street, etc. Such acquisition of the

property is to be done by the Commissioner of the Corporation.

As per Section 281 of the KMC Act any person who intends to

form or make new private street, he should make a written

application to the Commissioner with plans with necessary

details and on receipt of such requisition, the Commissioner has

to follow the procedure as contemplated under the said

provision. Section 284 of the KMC Act refers to right of owners

to require streets to be declared public. Section 283 of the

KMC Act deals with the power of the Commissioner to order

work to be carried out in respect of a private street or part

thereof. Therefore, it is clear that even for forming a new road

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or to extend or maintain the old private street or to declare it

as a public road or for making a new private street, certain

procedures are contemplated under the KMC Act.

65. Section 267 of the KMC Act deals with the powers

and authorities of the Commissioner with regard to streets. It

includes lay-out and making new public streets, widen, open,

extend or otherwise improve any public street. But the

Commissioner of the Corporation is kept away from the entire

procedure of either identifying or declaring a piece of land as a

Government land. But on the other hand, the City Survey

Officer has taken the lead in sub-dividing CTS No.403 into two

and identifying a Government lane with CTS No.403/1.

Moreover, there is no explanation whatsoever as to why the

public lane is identified with a CTS number which is something

unusual.

66. According to defendant Nos.1 and 2, they have filed

application as per Ex.P5 dated 09.07.2003. It was never

addressed to the Commissioner of City Corporation but on the

other hand it was addressed to the ADLR, City Survey Office,

Kalaburagi to measure and to form 150 feet passage in CTS

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No.403. It is only thereafter, formation of the Government

lane which is referred to as the public road in Ex.P6 as per

endorsement dated 30.01.2004, was came to be effected and

as per Ex.P7 CTS No.403/1 was mutated as Government lane

(public) measuring 393.80 sq.mts. Accordingly, tonch map as

per Ex.P8 was came to be drawn bifurcating CTS No.403 into

two divisions carving 403/1 and showing it as a public lane in

the dotted area. Similar sketch from the city survey sketch

book is as per Ex.P9 and these documents make it clear that as

per the application submitted by defendant No.1 i.e., Ex.P5,

CTS No.403 was sub-divided and the public lane is identified as

CTS No.403/1 and referred to the same as public lane or

Government lane for the first time as per endorsement dated

30.01.2004. Earlier to 30.01.2004, none of the public

documents, including the tonch map or city survey map or

village map referred to the existence of the disputed lane.

67. Ex.D7 is the notice issued by the City Surveyor,

Kalaburagi to the neighbouring land owners including the

plaintiff herein. This notice is dated 10.12.2003, obviously,

after submission of the application by the defendant as per

Ex.P5. As per this document, the City Surveyor, Kalaburagi

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notified the plaintiff and others who are the neighboring owners

about surveying the land on 30.12.2003 at 11.30 a.m. Nothing

has been placed before the Court to contend that this notice

was served on the plaintiff. Even though it is contended by

defendant Nos.1 and 2 that plaintiff has not attended or

participated in the survey and it is only the defendants who

participated in such survey carried on by the City Surveyor, no

scrap of paper is produced to contend that there was an actual

survey of the property by drawing a panchanama and in the

presence of the general public or a report or a sketch is drawn

at any point of time. If at all there was a survey, a

panchanama would have been drawn since it is claimed to be a

public lane, a sketch should have been drawn at the spot with

the measurement and a report also should have been

submitted by the City Surveyor, Kalaburagi. If at all such

documents were prepared, it will be available even with the

defendants to produce the same before the Court in support of

their contention. But none of those documents are produced

before the Court which leads to a conclusion that there was no

such survey nor preparation of the survey sketch or the survey

report as required under law.

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68. It is pertinent to note that the City Survey Officer

sub-divided CTS No.403 and carved out CTS No.403/1 to show

it as a public lane or the Government lane, but the said

Government lane is never identified as a public property in any

of the revenue records. It appears that there is no order

passed either identifying or declaring the said piece of land as a

Government lane as the same is not produced before the Court.

Even though it is contended by the defendants that the land in

question is a public lane which was in existence from time

immemorial, which was being used by the public at large,

except defendant Nos.1 and 2, no other members of the

general public have raised their voice with regard to the said

land. The defendants have also not examined any such

independent witness who can speak about either existence or

formation of the Government lane. It is also pertinent to note

that even as per Ex.D7 the notice was not given to the public at

large about the survey that was said to have been undertaken

by the City Surveyor.

69. Learned counsel for the defendants contended that

the suit of the plaintiff is barred under Section 61 of the KLR

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Act. Section 61 of the KLR Act deals with exclusive jurisdiction

of Revenue Courts and bar of jurisdiction of Civil Courts to

determine, decide or dispose of any matter which it is, by or

under this Act, empowered to determine, decide or dispose of

any such matters. Sub-section (2) of Section 61 of the KLR Act

contains the exceptions where the jurisdiction of the Civil courts

is not barred. Section 62 of the KLR Act deals with savings of

certain suits and it refers to suits which are not barred under

Section 61 of the KLR Act. Therefore, Sections 61 and 63 of

the KLR Act do not contemplate complete bar on the

jurisdiction of the Civil Court.

70. Even though the learned counsel for the defendants

placed reliance on Sections 61 and 63 of the KLR Act, it is not

made clear as to which is the order or the proceedings passed

either by the Commissioner of City Corporation, Kalaburagi or

by the City Survey Officer, ADLR, office of the City survey,

Kalaburagi that was required to be challenged by the plaintiff

before approaching the Court. Prima facie, there is no order

whatsoever passed by any of the authorities to enable the

plaintiff to knock the doors of the Revenue Courts.

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71. Section 9 of CPC vests jurisdiction with the civil

Court to deal with all suits of civil nature unless either expressly

or impliedly barred. Learned counsel for the appellants failed

to draw the attention of the Court to any such provision which

bars the jurisdiction of the Civil Court expressly or impliedly

exception Section 61 and 63 of the KLR Act. In the absence of

any such order passed by the competent authority, I am of the

opinion that the jurisdiction of the Civil Court is not barred.

Moreover, the materials on record disclose that CTS No.403 is

owned by the plaintiff. Admittedly, defendant Nos.1 and 2

have no right over CTS No.403. It is their specific contention

that they are the owners of CTS No.402. Under such

circumstances, they have no locus standi to challenge the claim

of the plaintiff for declaration in respect of CTS No.403/1

against defendant Nos.3 and 4. When the civil right of the

plaintiff to own and possess the property is at stake, the

plaintiff is entitled to knock the doors of the Civil Court.

Therefore, I do not find any substance in the contention taken

by the appellants in that regard.

72. Learned counsel for the appellants placed reliance

on the decision of the Co-ordinate Bench of this Court in

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Javarappa @ Javaraiah vs. Ramaiah and another in support of

her contention that the suit of the plaintiff is barred under

Sections 61 and 63 of the KLR Act. The Co-ordinate Bench of

this Court held that the plaintiff was required to exhaust his

right of appeal before the Revenue Court before instituting the

suit before the Civil Court. But the facts and circumstances of

that case is entirely different. In the said suit an application

was filed before the Tahasildar claiming to issue survivorship

certificate. Accordingly, the Tahasildar conducted an enquiry

and issued the survivorship certificate. One of the respondents

claimed that he is also the son of the deceased and by

suppressing the said fact the survivorship certificate was

obtained fraudulently. Therefore, he sought for cancellation of

the certificate and for issuance of fresh survivorship certificate.

Under such circumstances, it was held that the plaintiff in the

said suit should have exhausted his remedy to challenge the

survivorship certificate before the Revenue Court before

approaching the Civil Court. Therefore, the said decision is not

applicable to the facts of the present case.

RSA No.55/2013 disposed of on 25.06.2020

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73. Learned Senior Advocate for the respondent placed

reliance on the decision of the Hon'ble Apex Court in Anathula

Sudhakar vs. P. Buchi Reddy (Dead) by Lrs & Ors2 wherein the

Hon'ble Apex Court, highlighting the general principles as to

when a mere suit for permanent injunction will lie and when it

is necessary to file a suit for declaration and/or possession with

injunction as a consequential relief, clarified that a prayer for

declaration will be necessary only if the denial of title is by the

defendant or challenge to plaintiff's title raises a cloud on the

title of the plaintiff to the property. It is also stated that a

cloud is said to raise over a person's title, when same apparent

defect in his title to a property, or when some prima facie right

of a third party over it, is made out or shown. The action for

declaration is the remedy to remove the cloud on the title to

the property. If this principle is applied to the facts in the

present case, it is the City Survey Officer who cast the cloud on

the right and title of the plaintiff by carving out CTS No.403/1

and identifying the same as a public lane in the city survey

records. Under such circumstances, the plaintiff has rightly

sought for declaration to that effect for which he is entitled to.

AIR 2008 SC 2033

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74. To conclude it is also pertinent to note that the

contesting defendant, while filing the written statement,

specifically contended that the lane was in existence from time

immemorial but by mistake the same was not entered in CTS

records. Therefore, the representation was given as per Ex.P5

to enter it in the City Survey Records by finding the same with

survey. Thereby the defendants have categorically admitted

that in the City Survey Records the disputed lane was never

shown or identified and it is for the first time during 2003-04,

upon the representation by the defendants, such an exercise

was done. In the absence of any proceedings as contemplated

under law being followed to declare or even to enter the

existence of the lane in CTS records, mutation of CTS No.403

as CTS No.403/1 and identifying the same as a public lane or a

Government lane and the contention taken by defendant Nos. 1

and 2 cannot be accepted.

75. I have gone through the impugned judgment and

decree passed by the First Appellate Court. It has taken into

consideration all the materials on record and decreed the suit of

the plaintiff by setting aside the impugned judgment and

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decree passed by the Trial Court. I do not find any reason to

interfere with the same.

76. In view of the discussion held above, I am of the

opinion that the substantial questions of law referred to above

are to be answered in favour of the respondent and against the

appellants. Hence, I proceed to pass the following:

ORDER

(i) The appeal is dismissed with costs.

(ii) The impugned judgment and decree dated 19.04.2012 passed in R.A.No.97/2010 on the file of the learned Principal Senior Civil Judge, Kalaburagi is hereby confirmed.

Registry is directed to send back the Trial Court and the

First Appellate Court records along with copies of this judgment

and decree.

Sd/-

JUDGE

PN/SWK CT-VD