Karnataka High Court
Sri. A.M. Vijayendra vs The Government Of Karnataka on 9 February, 2023
Bench: H.P.Sandesh
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RSA No. 156 of 2020
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 9TH DAY OF FEBRUARY, 2023
BEFORE
THE HON'BLE MR JUSTICE H.P.SANDESH
REGULAR SECOND APPEAL NO. 156 OF 2020 (DEC/INJ)
BETWEEN:
1. SRI. A.M. VIJAYENDRA
S/O LATE A.B. MANJAPPA,
AGED ABOUT 58 YEARS,
R/AT ABACHOORU,
JAGANNANAKERE VILLAGE,
GANHIGHAR POST, KASABA HOBLI,
MUDIGERE TALUK,
CHIKKAMAGALURU DISTRICT-577 132.
...APPELLANT
(BY SRI. ABHIJITH M.M., ADVOCATE)
AND:
1. THE GOVERNMENT OF KARNATAKA
Digitally signed
by SHARANYA T REP. BY CHIEF SECRETARY TO GOVERNMENT,
Location: HIGH ROOM No.320, 3RD FLOOR,
COURT OF
KARNATAKA VIDHANA SOUDHA,
BANGALORE-560 001.
2. THE PRINCIPAL SECRETARY
TO GOVERNMENT OF KARNATAKA,
REVENUE DEPARTMENT,
ROOM No.505, 5TH FLOOR,
M.S. BUILDING,
BANGALORE-560 001.
3. THE REGIONAL COMMISSIONER
MYSORE REGION 'HIGH VIEW',
VINOBA ROAD,
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RSA No. 156 of 2020
OPPOSITE KALAMANDIR,
MYSORE-570 005.
4. THE DEPUTY COMMISSIONER
CHIKKAMAGALURU,
CHIKKAMAGALURU DISTRICT-577 101.
5. THE ASSISTANT COMMISSIONER
CHIKKAMAGALURU SUB-DIVISION
CHIKKAMAGALURU DISTRICT -577 101.
6. TAHASILDAR
MUDIGERE TALUK,
CHIKKAMAGALURU DISTRICT -577 132.
...RESPONDENTS
(BY SRI. H.R.ANITHA, HCGP FOR R1 TO R6)
THIS RSA IS FILED UNDER SEC.100 OF CPC AGAINST
THE JUDGMENT AND DECREE DATED 19.11.2019 PASSED IN
RA NO.05/2019 ON THE FILE OF THE SENIOR CIVIL JUDGE
AND JMFC, MUDIGERE, DISMISSING THE APPEAL AND
CONFIRMING THE JUDGMENT AND DECREE DATED 17.01.2019
PASSED IN OS NO.27/2017 ON THE FILE OF THE
C/c.PRINCIPAL CIVIL JUDGE AND JMFC, MUDIGERE.
THIS APPEAL COMING ON FOR ADMISSION THIS DAY,
THE COURT DELIVERED THE FOLLOWING:
JUDGMENT
This matter is listed for admission
today.
2. Heard the learned counsel appearing for the
appellant and the learned High Court Government Pleader
appearing for respondent Nos.1 to 6.
RSA No. 156 of 2020
3. This appeal is filed challenging the judgment and
decree dated 19.11.2019 passed in R.A.No.05/2019 on the file
of the Senior Civil Judge and JMFC., at Mudigere.
4. The factual matrix of the case of the plaintiff before
the Trial Court is that he is in possession and enjoyment of the
suit schedule property and the same was granted by the
Government through Dharkasth No.9/1931-32 in the name of
Byra @ Byrappa s/o. Putta. The Khatha has changed as per
order No.24, dated 13.08.1932. After his death, the name of
his son Manja @ A.B. Manjappa was entered in RTC, but in
column No.9 it is shown as coffee kharab and A.B.Manjappa
from 1968-69. A.B. Manjappa died on 04.10.1991, after which
the plaintiff has not paid the land revenue and in 1996-97,
defendant No.6 entered the column No.9 of RTC as Sarkari
Beelu. The said fact came to the knowledge of the plaintiff on
03.09.2007 and immediately he filed necessary application
before defendant No.6, but defendant No.6 did not take any
action. Hence, the plaintiff sent an application dated
04.11.2012 to the Registrar of High Court of Karnataka and the
matter was referred to the High Court Legal Aid Committee.
The Committee took opinion of M/s.Desai and Associates on
RSA No. 156 of 2020
21.12.2012 and has transferred the dispute to the TLSC,
Mudigere. The case was registered as PLC.No.03/2013. The
defendant No.6 appeared before the Committee and filed
objections, but has not agreed to change the khatha of the
schedule property in the name of the plaintiff. Hence, the
dispute was closed as not settled. Defendant No.6 without any
right, title or interest over the schedule property is trespassing
into the schedule property and removing the fence.
Immediately after filing of the suit, the defendants appeared
and defendant No.6 filed the written statement contending that
on verification of revenue documents 1 acre 37 guntas of land
in Sy.No.40 was granted under Darkasth in favour of Byra S/o.
Putta and younger son Manja, the same is mentioned in
Kethuvar Register. But in the index of land, the said land is
mentioned as coffee kharab and also in RTC for the year 1968
to 1995 the land is shown as coffee kharab. However
unauthorizedly the khatha has been mutated to the name of
A.B. Manjappa S/o. Byrappa. But the said mutation entries are
not mentioned in any mutation register. The plaintiff had
submitted an application on 30.09.2007 to restore the khatha
of the said land. As per the order dated 19.08.2012, the
RSA No. 156 of 2020
application of the plaintiff was disposed of. Since the property
was used by the public for the purpose of burial ground and the
same is ordered to be reserved for the use of public as burial
ground. Neither defendant No.6 nor his subordinates have
trespassed the suit schedule property. The defendants have
issued an endorsement for the legal notice dated 06.09.2016
stating that the khatha cannot be mutated in favour of the
plaintiff.
5. Having considered the pleadings of the parties, the
Trial Court framed the issues. The plaintiff got examined
himself as P.W.1 and got marked the documents as Exs.P1 to
P43. On the other hand, defendant No.6 has examined himself
as D.W.1 and got marked the documents as Exs.D1 to D4.
6. The Trial Court after considering both oral and
documentary evidence available on record came to the
conclusion that the plaintiff is not in possession of the suit
schedule property and answered issue No.2 that the property is
used by the public for the purpose of burial ground and
declined to pass an order of injunction on the ground that the
plaintiff has not established the possession over the suit
RSA No. 156 of 2020
schedule property while answering issue Nos.4 and 5 and
dismissed the suit. Being aggrieved by the judgment and
decree, an appeal had been filed, which is numbered as RA
No.5/2019 before the First Appellate Court.
7. The First Appellate Court on re-appreciation of both
oral and documentary evidence placed on record came to the
conclusion that the property vest with the State on account of
non payment of tax. Subsequently, the property is also
reserved for public burial ground. In order to establish the
possession no witness of adjoining land owner has been
examined before the Trial Court and also the plaintiff has not
paid the tax to the Government and hence, the property fallen
to the Government. Under the circumstances, no ground is
made out and dismissed the appeal. Being aggrieved by the
judgment and decree of the Trial Court and the First Appellate
Court, the present second appeal is filed before this Court.
8. The learned counsel appearing for the appellant
would vehemently contend that both the Courts have
committed an error in not considering the document - Ex.P1-
Khetuvaru Register. The learned counsel would submit that
RSA No. 156 of 2020
both the Courts have not considered both oral and
documentary evidence available on record. The learned counsel
also would submit that the revenue documents stand in the
name of the plaintiff grandfather and in the name of plaintiff
father and not getting the proper report of coffee kharab and
trees stand in the suit schedule property and after the death of
the father of the plaintiff he has not paid the revenue. The very
observation of the Trial Court and the First Appellate Court is
erroneous. The learned counsel also would submit that the
substantial question of law arises for consideration of this Court
is that both the Courts have committed an error and failed to
appreciate the evidence available on record and ignoring the
material on record and passed the judgments. Hence, it
requires interference.
9. Per contra, learned High Court Government Pleader
appearing for the respondents/defendants would submit that
the Trial Court and the First Appellate Court taken note of the
evidence available on record and particularly came to the
conclusion that no documents stand in the name of the plaintiff
and admittedly, the property is fallen to the Government on
account of non-payment of tax in the year 1995-96 itself
RSA No. 156 of 2020
thereafter application was filed in the year 2007. In the
meanwhile, already the land is reserved for the public usage for
the purpose of burial ground. The Tahasildar also made
inspection and found that the suit schedule property is used by
public for the purpose of burial ground. Both the Courts have
taken note of the material available on record and given a
definite finding that the plaintiff is not in possession of the suit
schedule property. Hence, it does not require any interference.
10. Having heard the respective counsel and also on
perusal of the material available on record, the suit is filed for
the relief of bare injunction in respect of 1 acre 30 guntas
excluding 7 guntas of kharab land. It is the claim of the
plaintiff that the land was granted in favour of the grand father
of the plaintiff and also the same is not disputed by the
defendants in the written statement and admitted that the land
was granted in favour of grandfather of the plaintiff and also
not disputed the fact that the property was fallen to the
Government on account of non payment of tax. The Trial Court
as well as the First Appellate Court taken note of in terms of
document - Ex.D1, the schedule property is mentioned in
column 9 as 'Sarkari Beelu' and the documentary evidence
RSA No. 156 of 2020
produced by the plaintiff i.e., Ex.P8-RTC reveals that some
other properties were changed in the name of the plaintiff after
death of his father. Ex.P8 reveals that khatha of Sy.No.39/p
mutated in the name of the plaintiff in the year 1999-2000 and
the Trial Court also while considering the contention of the
plaintiff and while answering issues, in paragraph Nos.9 and 10
discussed with regard to the documents which have been
placed by the plaintiff and also taken note of the evidence of
D.W.1, who led evidence before the Trial Court and got marked
the documents - Exs.D1 to D4. In terms of Ex.D1, which is the
RTC of Sy.No.40 for the year 1996 to 2001, which shows
Sarkari Beelu in Column No.9. Ex.D2 is the ILR for Sy.No.
No.40, which shows coffee kharab. Ex.D3 is the certified copy
of Khethuvaru Register, which is same as Ex.P1 and Ex.D4 is
the order of the Tahasildar reserving 1.37 acres in Sy.No.40 as
burial ground.
11. The Trial Court taking note of all these material
available on record came to the conclusion that the first of all
the title deed of the original grant has not been produced
before the Court. Apart from that, no document is available
before the Court on the date of filing the suit to show that the
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RSA No. 156 of 2020
plaintiff has been in possession of the property and taken note
of Ex.D4, under which the property was reserved for public
usage for burial of the dead body. Accordingly, answered issue
No.1 as negative and Issue No.2 as affirmative and came to the
conclusion that the property is used for burial ground and also
Issue Nos.4 and 5 with regard to possession is concerned, the
plaintiff fails to prove that he is in possession over the suit
schedule property and dismissed the suit.
12. The First Appellate Court also on re-appreciation of
the grounds urged by the appellant before the First Appellate
Court and considered both oral and documentary evidence
placed on record and taken note of the material available on
record and in paragraph No.16 discussed the disputed fact is
that whether schedule property is coffee kharab or not. The
document also discloses that the defendants wrongly entered
coffee kharab but to prove the same the plaintiff has not placed
any document regarding making of entry. The First Appellate
Court also in paragraph No.17 taken note of the property was
mentioned as Sarkari Beelu from 1996-97 as per Ex.D1. No
doubt, the learned counsel for the appellant would contend that
an application is filed for restoration of the property. But no
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RSA No. 156 of 2020
such order has been passed for restoring the property in favour
of the plaintiff. In order to prove the fact that he has been in
possession of the property also except examining himself as
P.W.1 not examined any of the witnesses and the same is also
observed in paragraph No.18 of the judgment of the First
Appellate Court that the possession also has not been proved
even by examining the neighbouring owners.
13. Having considered the material on record and the
relief is sought for the permanent injunction and at the time of
granting permanent injunction, the Court has to see the
documents whether the property is in possession of the plaintiff
as on the date of filing the suit, whether there is any
interference. The material discloses that the suit schedule
property was taken away by the Government in the year 1996-
97 itself mentioning the same as Sarkari Beelu as per Ex.D1.
Apart from that, Ex.D4 is also very clear that the Tahasildar has
reserved the suit schedule property for the usage of general
public for burial ground. When such being the case, Exs.D1
and D4 are not challenged by the plaintiff in order to prove the
factum of possession as on the date of the suit, no material is
placed before the Trial Court and even in the First Appellate
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RSA No. 156 of 2020
Court also. Both Courts have taken note of both oral and
documentary evidence placed on record and also the evidence
of P.W.1 and D.W.1 and the document placed by the
defendants also establishes that the suit schedule property
become Government land in the year 1996-1997 itself and
thereafter no such document is evident to show that the
plaintiff has been in possession of the property instead of Ex.D4
discloses that the Tahasildar of Mudigere passed an order to
reserve the said land for the public usage for the purpose of
burial ground. Hence, rightly came to the conclusion that the
defendants have proved their contention while answering issue
No.2 as affirmative. Hence, I do not find any error on the part
of the Trial Court as well as the First Appellate Court and the
material considered by the Trial Court and the First Appellate
Court based on the oral and documentary evidence and no
perversity is found in the findings of both the Trial Court as well
as the First Appellate Court. Hence, I do not find any ground to
invoke Section 100 of CPC., to admit and frame any substantial
question of law.
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RSA No. 156 of 2020
14. In view of the discussions made above, I pass the
following:
ORDER
The appeal is dismissed.
In view of dismissal of the appeal, I.A.No.1/2020 for stay
does not survive for consideration and the same stands
disposed of.
Sd/-
JUDGE
CP
