Karnataka High Court
Malshettappa vs The Deputy Commissioner on 6 December, 2023
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RSA No. 116 of 2008
IN THE HIGH COURT OF KARNATAKA
KALABURAGI BENCH
DATED THIS THE 6TH DAY OF DECEMBER, 2023
BEFORE
THE HON'BLE MRS JUSTICE M G UMA
REGULAR SECOND APPEAL NO.116 OF 2008 (DEC/INJ)
BETWEEN:
MALSHETEPPA S/O SAIBANNA PATIL
DIED BY LR'S
i SMT. PADMAVATI
W/O LATE MALSHETEPPA PATIL
AGED ABOUT 75 YEARS, OCC: HOUSEHOLD
R/O MUSTARI, TQ: HUMNABAD,
DIST: BIDAR.
ii CHANDRAKANT
S/O LATE MALSHETEPPA PATIL
AGE: 57 YEARS, OCC: AGRI.,
R/O MUSTARI, TQ: HUMNABAD,
DIST: BIDAR.
Digitally signed iii VAIJANATH
by SHILPA R
TENIHALLI S/O LATE MALSHETEPPA PATIL
Location: HIGH AGE: 55 YEARS, OCC: AGRI.,
COURT OF
KARNATAKA R/O MUSTARI, TQ: HUMNABAD,
DIST: BIDAR.
iv VISHWANATH
S/O LATE MALSHETEPPA PATIL
AGE: 53 YEARS, OCC: AGRI.,
R/O MUSTARI, TQ: HUMNABAD,
DIST: BIDAR.
v NOORANDAPPA
S/O LATE MALSHETEPPA PATIL
AGE: 48 YEARS, OCC: AGRI.,
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RSA No. 116 of 2008
R/O MUSTARI, TQ: HUMNABAD,
DIST: BIDAR.
vi RAVI S/O LATE MALSHETEPPA PATIL
AGE: 44 YEARS, OCC: AGRI.,
R/O MUSTARI, TQ: HUMNABAD,
DIST: BIDAR.
vii HEMAVATI D/O MALSHETEPPA PATIL
W/O SOMSHEKER PATIL,
AGE: 50 YEARS, OCC: HOUSEHOLD,
R/O OPP TO MEGURE EYE HOSPITAL NANDI COLONY,
BIDAR, DIST: BIDAR.
...APPELLANTS
(BY SRI S.B. HANGARKI, ADVOCATE)
AND:
1. THE DEPUTY COMMISSIONER
BIDAR.
2. THE TAHASILDAR
TQ.HUMANBAD, DIST. BIDAR.
3. TAMMANNA S/O PEERAPPA
SINCE DEAD BY LR'S.
a. DHANAMMA
W/O SIDRAMAPPA CHRISTIAN MALGI,
AGE: 63 YEARS, OCC: HOUSEHOLD,
R/O: ITGA, TQ.HUMANBAD, DIST. BIDAR.
SINCE DECEASED BY LR'S
i SUDARSHAN
S/O SIDDRAMAPPA CHIRISTIAN MALGI
(ITGI MASTER), AGE: 45 YRS., OCC: MASTER,
ii SUJIT S/O SIDDRAMAPPA CHRISTIAN MALGI,
AGE: 42 YRSS., OCC: SERVICE
BOTHE R/O H. NO. 15-64,
NEAR BHAVANI TEMPLE ROAD,
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RSA No. 116 of 2008
CHITGUPPA, DIST: BIDAR.
b. SHAMSUNDAR S/O TAMMANNA
SINCE DECEASED BY HIS LR'S
1. SHASHIKALA W/O SHAMSUNDAR HEGDE,
SINCE DECEASED HER LR'S
ALREADY ON RECORD
AS RESPONDENT No. 3(b)(2&3)
2. AJAY S/O SHAMSUNDER HEGDE,
AGE: MAJOR,
3. ABDANIGO S/O SHAMSUNDAR HEGDE,
AGE: MAJOR,
ALL R/O JAI BHIMNAGAR, CHANDAPUR,
TQ: CHINCHOLI, DIST: KALABURAGI.
c. DHANPATI S/O TAMMANNA
AGE: 47 YEARS, OCC: AGRI.,
R/O: KODAMBLE,
TQ: HUMNABAD, DIST- BIDAR.
d. GOKHALE S/O TAMMMANNA,
AGE: 45 YEARS, OCC: AGRI.,
R/O: KODAMBLE,
TQ: HUMNABAD, DIST- BIDAR.
e. LALITABAI W/O AMBANNA,
AGE: 41 YEARS, OCC: AGRI.,
R/O: NANDAGAON,
TQ: HUMNABAD, DIST- BIDAR.
f. SHANTABAI D/O TAMMANNA,
AGE: 37 YEARS, OCC: AGRI.,
R/O: KODAMBLE,
TQ: HUMNABAD, DIST- BIDAR.
g. VIJAYKUMARS/O TAMMANNA,
AGE: 31 YEARS, OCC: AGRI.,
R/O: KODAMBLE,
TQ: HUMNABAD, DIST- BIDAR.
h. SUREKHA D/O TAMMANNA
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RSA No. 116 of 2008
AGE: 29 YEARS, OCC: AGRI.,
R/O: KODAMBLE,
TQ: HUMNABAD, DIST- BIDAR.
i. RUKAMMA W/O TAMMANNA
AGE: 65 YEARS, OCC: HOUSEHOD,
R/O: KODAMBLE,
TQ: HUMNABAD, DIST- BIDAR.
...RESPONDENTS
(BY SRI RAJKUMAR A. KORWAR HCGP FOR R1 & R2;
SRI VIKRAM VIJAYAKUMAR ADV. FOR R3(b) (2), R3(b) (3) &
R3(g); SRI M.A. JAHAGIRDAR ADV. FOR R3(e) TO R3(h);
R3 (b) (1) IS DEAD; R3 (b) (2), R3(b) ARE TREATED AS LR'S
DECEASED R3(b)(1); R3(3) (c), R3 (d) & R3(i) ARE SERVED;
R3(a) (i) & R3(a) (ii) ARE HELD SUFFICIENT V/O DATED
08.09.2022)
THIS RSA IS FILED U/S 100 OF CPC PRAYING TO ALLOW
THIS APPEAL BY SETTING ASIDE THE JUDGMENT AND DECREE
OF THE CIVIL JUDGE (SR.DN) AT BASAVAKALYAN (CAMP AT
HUMNABAD) DATED 29.09.2007 IN R.A. NO.9/1993, AND
CONFIRM THE JUDGMENT AND DECREE OF THE MUNSIFF AT
HUMNABAD DATED 21.04.1990 IN O.S. NO.121/1984.
THIS APPEAL, COMING ON FOR FINAL HEARING, THIS
DAY, THE COURT DELIVERED THE FOLLOWING:
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. The plaintiff in O.S.No.121/1984 on the file of the
learned Munsiff Court at Humnabad (hereinafter referred to as
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'Trial Court' for brevity) is impugning the judgment and decree
dated 29.09.2007 passed in R.A.No.9/1993 on the file of the
learned Civil (Sr.Dn.) at Basavakalyan (hereinafter referred to
as 'First Appellate Court' for brevity), allowing the appeal and
consequently dismissing the suit of the plaintiff for declaration
and for permanent injunction holding that the suit of the
plaintiff is not maintainable.
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 plaintiff filed the
suit O.S.No.121/1984 against the defendants seeking
declaration that the endorsement made by defendant No.2 -
Tahsildar in the tenancy register of Kodambal village in form
No.4 in respect of Survey Nos.314, 315, 316, 329, 330, 332
and 333 of the said village as they are the tenanted properties
and to declare that the order passed by the Deputy
Commissioner - defendant No.1 dated 17.03.1984 are illegal
and not binding on the plaintiff and also for permanent
injunction restraining defendant No.3 from interfering with
lands bearing (i)Survey No.314 measuring 37.22 acres,
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(ii) Survey No.315 measuring 30.27 acres, (iii) Survey No.316
measuring 24.36 acres, (iv) Survey No.329 measuring 7.11
acres, (v) Survey No.330 measuring 4 acres, (vi) Survey
No.332 measuring 8.34 acres and (vii) Survey No.333
measuring 9.03 acres situated at Kodambal village, Humnabad
taluka (hereinafter referred to as the 'schedule properties' for
brevity).
5. It is contended by the plaintiff that he is the son of
Saibanna Patil. He was the owner of the schedule properties
and was in possession of the same during his lifetime. After his
death, the plaintiff and his three brothers succeeded to the
schedule properties and were cultivating the same. However,
Survey Nos.312 and 313 of the said village were sold in favour
of defendant No.3 by the father of the plaintiff, to which, the
plaintiff is not claiming any right.
6. It is contended that defendant No.3 after coming
into force of the Karnataka Land Revenue Act, 1961 (for short
'KLR Act'), had filed form No.7 in respect of the schedule
properties seeking grant of the lands. The same was enquired
into by the Land Tribunal in LRM/CR.262/75-76 and the same
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was rejected on 13.03.1976. Being aggrieved by the same,
defendant No.3 filed writ petition in W.P.No.29862/1981
challenging rejection of his form No.7 by the Land Tribunal.
The said writ petition was came to be allowed vide order dated
28.02.1984. Being aggrieved by the same, the plaintiff has
preferred writ appeal in W.A.No.1416/1984. During the
pendency of the writ appeal, defendant No.3 filed an application
before the Deputy Commissioner to include the schedule
properties in the register on the claim that they are the
tenanted properties. However, the said claim was rejected by
the Deputy Commissioner. But, in the mean time, defendant
No.2 - Tahsildar passed an order and made an endorsement on
16.05.1984 entering the schedule properties in the tenancy
register, without brining it to the notice of the plaintiff. When it
was brought to the notice of the plaintiff, he has filed the suit.
It is stated that taking undue advantage of the same,
defendant No.3 is attempting to interfere with the peaceful
possession and enjoyment of the plaintiff over the schedule
properties and accordingly, prayed for declaration and for
permanent injunction.
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7. Defendant No.2 filed the written statement denying
the contentions taken by the plaintiff. It is asserted that the
schedule properties are the tenanted lands and same were
vested with the Government. Therefore, the same are entered
in the tenancy register. It was contended that earlier order
passed by the Tahsildar concerned was illegal and therefore, he
rectified the same by making proper endorsement.
8. It is contended that the suit of the plaintiff is barred
in view of Sections 61 and 63 of the KLR Act. The plaintiff
should have challenged the same before the Revenue Court.
Hence, prayed for dismissal of the suit.
9. Defendant No. 3 has not contested the suit.
10. On the basis of these pleadings, following issues
were came to be framed:
1) Whether the plaintiff proves that the endorsement
made by the defendant No.2 in the tenancy register
of village Kodambal Form No.4 in respect of making
right mark is against the Sy. Nos. 314, 315, 316,
329, 330, 332 and 333 and round marked made to
the earlier endorsement of the then Tahasildar
Humnabad dated 13.03.1965 is void, illegal and
ineffective and is not binding upon the plaintiff?
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2) Whether the plaintiff proves that, father of the
plaintiff was owner of the land Sy. No. 314, 315,
316, 329, 330, 332 and 333 of Kadambal village
and he had mortgaged these lands to the defendant
No.3 about 30-35 years back and he has got
redeemed the same ?
3) Whether the plaintiff proves that, the order passed
by the Deft. No.1 dated 17.03.1984 in file No.
REV/RRT/Cr.40/83-84 on the file of the Deputy
Commissioner, Bidar is illegal and ineffective and as
such, it is nor binding upon the plaintiff?
4) Whether the plaintiff proves that, he is entitled to
get permanent injunction against the defendant
No.3 to restrain him to claim any right of tenancy in
respect of the land Sy. No. 314, 315, 316, 329,
330, 332 and 333 of Kadambal village?
5) Whether the defts. 1 and 2 prove that the land Sy.
Nos 314, 315, 316, 329, 330, 332 and 333 of
Kadambal village are tenancy land as such, they are
rightly entered in tenancy register?
6) Whether the defendants no.1 and 2 prove that the
suit of the plaintiff is not maintainable due to
misjoinder of the parties?
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7) Whether the defendant Nos. 1 and 2 prove that the
suit of the plaintiff is not maintainable in view of
Section 61 and 63 of Karnataka Land Revenue Act
and in view of the Section 9 of CPC
8) Whether the plaintiff proves that he is entitled for
the relief sought
9) What order or decree?
11. The plaintiff got examined PWs.1 and 2 and got
marked Exs.P1 to P6 in support of his contentions. Defendant
No.2 examined himself as DW.1. The Trial Court after taking
into consideration all these materials on record, decreed the
suit of the plaintiff in part, with cost of Rs.500/-, declaring that
the endorsement made by defendant No.3 in the tenancy
register of the village Kodambal in form No.4 in respect of the
schedule properties is null and void and not binding on the
plaintiff and also granting permanent injunction, restraining
defendant No.3 from claiming any right or tenancy over the
schedule properties based on such endorsement. Defendant
No.2 was ordered to pay cost of Rs.500/- to the plaintiff.
12. Being aggrieved by the same, defendant No.2 has
preferred R.A.No.9/1993. The First Appellate Court on re-
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appreciation of the materials on record, allowed the appeal by
setting aside the impugned judgment and decree passed by the
Trial Court on the ground that the suit of the plaintiff is not
maintainable in view of Sections 61 and 63 of the KLR Act.
Being aggrieved by the same, the plaintiff is before this Court.
13. Heard learned counsel Sri S.D.Hangarki for the
appellant/plaintiff and learned High Court Government Pleader
for respondent Nos.1 and 2/defendant Nos.1 and 2.
14. Perused the materials on record including the Trial
Court and the First Appellate Court records. The substantial
question of law that would arise for consideration is:
"Whether the suit of the plaintiff is barred
and not maintainable in view of Sections 61 and
63 of the Karnataka Land Revenue Act?"
15. The contention of the plaintiff is that the schedule
properties were not the tenancy properties and that the same
were in his exclusive possession and enjoyment and the same
was accepted by the Trial Court. The First Appellate Court also
concurs with the finding of the Trial Court holding that the
plaintiff has proved his contention that defendant No.2 had no
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authority to make such endorsement in the register concerned.
However, the appeal was came to be allowed only on the
ground that the plaintiff could not have filed and maintained
the suit under Section 9 of CPC in view of the bar under
Sections 61 and 63 of the KLR Act. Therefore, I restrict my
discussion only to that extent to find out as to whether the suit
is barred under the said provisions of law.
16. Section 61 of the KLR Act deals with exclusive
jurisdiction of the Revenue Court and it bars the jurisdiction of
the Civil Court. Section 63 of the KLR Act bars the Civil Court
from entertaining a suit or other proceedings against the State
Government on account of the act or omission of the State
Government or any revenue officer, unless he exhausts his
remedy as provided under the KLR Act.
17. Sections 61 and 63 of the KLR Act cannot be read in
isolation with Section 62 of the KLR Act, which deals with
savings of certain suits. In other wards it is in form of
exception to the bar contained either under Section 61 or 62 of
the KLR Act. Sub clause (b) of Section 62 of the KLR Act refers
to the suits between the private parties for the purpose of
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establishing any private right, although it may be effected by
any entry in any land records.
18. In the present case even though the plaintiff has
filed the suit for declaration regarding the endorsement issued
by defendant No.2 - the Tahasildar, and even though the
plaintiff has also sought for declaration that the endorsement
made by defendant No.1 dated 17.03.1984 is void, illegal,
ineffective and not binding on the plaintiff, the said prayer was
not granted by the Trial Court and denial of such relief was not
challenged by the plaintiff before the First Appellate Court. The
learned counsel for the appellant submits that the appellant
had given up such claim and therefore he was aggrieved by
denial of such relief. The other prayer made by the plaintiff is
for perpetual injunction against defendant No.3, who is a
private party, to restrain him from claiming any right of
tenancy in respect of the schedule properties on the strength of
the endorsement made by defendant No.2. Ofcourse the
endorsement made by defendant No.2 in the tenancy register
could have been challenged by the plaintiff before the revenue
Court. But the apprehension of the plaintiff as stated in the
plaint discloses that inspite of rejection of his Form No.7 by the
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Land tribunal, defendant No.3 managed to get such an
endorsement through defendant No.2, without any basis speaks
in volumes and it probablilises the apprehension of the plaintiff.
Moreover, when the plaintiff is seeking permanent injunction
against defendant No.3 from making use of such an
endorsement, the same was taken into consideration by the
Trial Court in the light of the facts and circumstances of the
case and the developments which was prevailing before filing of
the suit and also during the pendency of the suit to grant the
decree of perpetual injunction to restrain defendant No.3 from
claiming right of tenancy over the suit lands on the basis of the
endorsement passed by defendant No.2.
19. Admittedly, the Land tribunal had rejected the claim
of defendant No.3 in respect of the schedule properties by
rejecting his Form No.7 as per order dated 13.03.1976.
Defendant No.3 had filed W.P.No.29862/1981 before this Court.
The said writ petition was came to be allowed by the Co-
ordinate Bench of this Court as per order dated 28.02.1984 and
the matter was remitted back to the Tribunal for fresh
consideration. The plaintiff herein being aggrieved by the said
order had preferred Writ Appeal in W.A.No.1416/1984. It is
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during the pendency of the said writ appeal, defendant No.2
ventured to make endorsement in the tenancy register on the
application filed by defendant No.3. It is also pertinent to note
that defendant No.3 filed such application initially before the
Deputy Commissioner, but the Deputy Commissioner had
rejected the said application as per order dated 17.03.1984. It
is only thereafter the defendant No.2 - Tahasildar ventured to
make the endorsement in question on 16.05.1984. In the
meantime the writ appeal pending before this Court was came
to be allowed as per order dated 23.03.1987 and the matter
was remitted back to the writ Court for fresh consideration.
20. It is an admitted fact that the writ petition was came
to be transferred to the District Land Tribunal Appellate
Authority on its formation and the appeal by the plaintiff herein
was came to be allowed by the Land Tribunal Appellate
Authority and thereby confirmed rejection of Form No.7 filed by
defendant No.3 by the Land Tribunal. It is not in dispute that
rejection of Form No.7 filed by defendant No.3 has reached
finality, as defendant No.3 has not pursued the matter
thereafter. But strangely defendant No.2 has taken the task of
making endorsement in the tenancy register during the
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pendency of the writ appeal before this Court that too after the
Deputy Commissioner has passed the order dated 17.03.1984
by rejecting the application filed by defendant No.3. Therefore,
it is clear that defendant No.2 had made such endorsement
without any basis and authority. Hence the same is void ab
initio.
21. It is pertinent to note that the plaintiff has sought for
permanent injunction to restrain defendant No.3 from making
use of such endorsement in the tenancy register. Such a
permanent injunction could not have been sought by the
plaintiff before the revenue Court. Looking to the peculiar facts
and circumstances of the case, I am of the opinion that it is
nothing but the mischief played by defendant Nos.2 and 3
which forced the plaintiff to approach the civil Court. The
discussion held above discloses that the suit of the plaintiff
squarely falls under Section 62(b) of the KLR Act and therefore,
it is saved from the bar under Sections 61 and 63 of the KLR
Act.
22. In view of the discussion held above, it cannot be
held that Sections 61 and 63 of the KLR Act would bar the
jurisdiction of the civil Court. When the civil right of the plaintiff
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to own the schedule property was at stake, it is to be held that
the suit of the plaintiff for declaration and for perpetual
injunction is maintainable. It is to be noticed that defendant
No.3, who ventured to seek such an endorsement in the
tenancy register in respect of the schedule properties, has not
chosen to contest the matter either before the Trial Court or
before the First Appellate Court or even before this Court. It is
only defendant No.2 who is interested in denying the right of
the plaintiff. Under such circumstances, I am of the opinion
that the contention raised by defendant No.2 regarding
maintainability of the suit will have to be rejected. Accordingly,
I answer the substantial question of law in favour of the
appellants and against the respondents and proceed to pass the
following:
ORDER
(i) The appeal is allowed with costs.
(ii) The impugned judgment and decree dated
29.09.2007 passed in R.A.No.9/1993 on the file
of the learned Civil Judge (Sr.Dn.) at
Basavakalyan (Camp at Humnabad) is set
aside.
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(iii) As a result, suit of the plaintiff is decreed in
part. The judgment and decree dated
21.04.1990 passed in O.S.No.121/1984 on the
file of the learned Munsiff at Humnabad is
restored, with costs.
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
SRT,SWK
CT-VD
