Sunita W/O. Nagaraj Hurulli vs Bhimappa S/O. Late Mallappa ...
2023 Latest Caselaw 3668 Kant

                                                   -1-
                                                            RSA No. 5196 of 2012



                                  IN THE HIGH COURT OF KARNATAKA,

                                           DHARWAD BENCH

                                DATED THIS THE 26TH DAY OF JUNE, 2023

                                                BEFORE

                             THE HON'BLE MR JUSTICE RAJENDRA BADAMIKAR

                              REGULAR SECOND APPEAL NO. 5196 OF 2012


                        BETWEEN

                        1.    SMT. SUNITA
                              W/O. NAGARAJ HURULI.
                              AGE: 34 YEARS,
                              OCC: AGRICULTURE,
                              R/O: KALTAWARAGERI,
                              TQ & DIST: KOPPAL-583231.

                        2.    NAGARAJ
                              S/O YAMANAPPA HURULI
                              AGE: 44 YEARS,
                              OCC: AGRICULTURE,
                              R/O: KALTAWARAGERI,
                              TQ & DIST: KOPPAL-583231.


                                                                   ...APPELLANTS
           Digitally
           signed by
           YASHAVANT
YASHAVANT  NARAYANKAR
NARAYANKAR Date:
                        (BY SRI. P.G. MOGALI, ADVOCATE)
           2023.06.30
           12:45:28 -
           0700


                        AND

                        1.    BHIMAPPA
                              S/O LATE MALLAPPA LALAGI
                              AGE: 48 YEARS,
                              R/O. KAL-TAVARAGERA,
                              TQ AND DIST: KOPPAL-583231.
                             -2-
                                      RSA No. 5196 of 2012




2.   NAGAPPA
     S/O LATE MALLAPPA LALAGI
     AGE: 45 YEARS,
     R/O: KAL-TAVARAGERA,
     TQ AND DIST: KOPPAL-583231.

3.   SMT. RATNAMMA
     W/O BHIMAPPA LALAGI
     AGE: 38 YEARS,
     R/O. KAL-TAVARAGERA,
     TQ AND DIST: KOPPAL-583231.

4.   SMT. HAMPAVVA
     W/O NAGAPPA LALAGI
     AGE: 35 YEARS,
     R/O. KAL-TAVARAGERA,
     TQ AND DIST: KOPPAL-583231.

                                              ...RESPONDENTS

(BY SRI. A.S.PATIL ADV. FOR R1 TO R4 - ABSENT)


     THIS RSA IS FILED U/S.100 OF CPC., AGAINST THE
JUDGMENT     &   DECREE    DTD:   15.11.2011     PASSED    IN
R.A.NO.29/2011 ON THE FILE OF THE SENIOR CIVIL JUDGE AT
KOPPAL,   ALLOWING   THE    APPEAL,   FILED    AGAINST    THE
JUDGMENT DTD: 12.04.2011 AND THE DECREE PASSED IN
O.S.NO.160/2008 ON THE FILE OF THE CIVIL JUDGE AT
KOPPAL, DECREEING THE SUIT FILED FOR DECLARATION AND
RECOVERY OF POSSESSION.

     THIS APPEAL HAVING BEEN HEARD AND RESERVED ON
12.06.2023   FOR   PRONOUNCEMENT,      THIS     DAY   COURT
DELIVERED THE FOLLOWING.
                                  -3-
                                              RSA No. 5196 of 2012



                            JUDGMENT

This appeal is filed by the plaintiffs challenging the

judgment and decree passed by the Senior Civil Judge,

Koppal, in R.A.No.29/2011 dated 15.11.2011 whereby the

learned Senior Civil Judge has reversed the judgment and

decree in O.S.No.160/2008 dated 12.04.2011 on the file of

the Civil Judge, Koppal and dismissed the suit of the

plaintiffs-appellants herein.

2. For the sake of convenience, parties are referred

to as per the ranks occupied by them before the Trial Court.

3. The brief factual matrix leading to the case are

that the plaintiffs have filed a suit for the relief of declaration

that they are the owners of the suit land bearing Survey

No.150/4 measuring 37 guntas, out of 2 acres 29 guntas and

sought for possession of the said property from the

defendants. It is the contention of the plaintiffs that Survey

No.150/4 was totally measuring 2 acres 29 guntas and it had

been granted to one Devappa S/o. Yamanappa. That plaintiff

No.1 and Devappa are brothers and in oral partition in the

year 2006, the said survey number has been allotted to

RSA No. 5196 of 2012

plaintiff No.1. Plaintiff No.2 is the husband of Plaintiff No.1

and it is alleged that in the year 2005, the defendants have

highhandedly encroached the suit property to the extent of

37 guntas and hence, they have filed this suit. Initially, suit

was filed for possession of 29 guntas on the ground that 29

guntas was encroached, but subsequently after report of the

Surveyor/Court Commissioner, the plaintiffs have got

amended the plaint and sought possession of 37 guntas of

encroached area.

4. The defendants appeared before the Trial Court

and contested the suit. It is contended by the defendants

that the suit land Survey No.152 situated in Kaltavaragera

village totally measures 16 acres 29 guntas and it was

formerly a government land and was standing in the name of

Mallappa Lalagi. It is also alleged that there was a waste

land to an extent of 1 acre 22 guntas and out of total 16

acres 29 guntas, 15 acres 22 guntas has been cultivated by

the father of defendants 1 and 2 by name Mallappa and the

Tahasildar has granted the said land in favour of the father

of defendants 1 and 2. It is further asserted that 4 acres 38

guntas of land was granted in the name of Mallappa

RSA No. 5196 of 2012

Bheemappa Ganiger @ Lalagi and an extent of 4 acres 14

guntas in the name of defendant No.1 and an extent of 4

acres 14 guntas in the name of Basappa Sidlingappa

Ganiger. Hence, according to the defendants, 13 acres 26

guntas has been granted in the name of the above said

persons, through whom defendants are claiming. It is also

asserted that behind the back of the defendants and

Devappa, the plaintiffs illegally got granted an area of 2

acres 29 guntas in Survey No.152 and hence, the alleged

subsequent grant, without cancellation of earlier grant, is

illegal as there was no such area as claimed. It is also

alleged that M.E.No.9 was illegally mutated and there is no

encroachment by the defendants and it is contended that the

plaintiffs are owners only to the extent of 2 acres 1 gunta

and not 2 acres 29 guntas as alleged. Hence, they have

sought for dismissal of the suit.

5. On the basis of the pleadings, the Trial Court

framed following four issues:

1. Whether the plaintiffs prove suit schedule property was allotted to Devappa S/o. Yamanappa as per order Dt:7-3-1985 and

RSA No. 5196 of 2012

he was in possession and enjoyment of said property?

2. Whether the plaintiffs prove in 2005 the defendants have illegally encroached 29 guntas in suit schedule property?

3. Whether the plaintiffs are entitled for suit claimed reliefs?

4. What order or decree?

6. Plaintiff No.2 was examined as PW1 and reliance

was placed on Ex.P1 to Ex.P20. Defendant No.1 was

examined as DW1 and Ex.D1 to Ex.D28 were relied. Further,

DW2 and DW3 were also examined on behalf of the

defendants. Surveyor was also appointed as Court

Commissioner and he submitted his report, which is a part of

the records. The Surveyor was examined as CW1.

7. After hearing hear the arguments and

appreciating the oral and documentary evidence, the learned

Civil Judge has answered issues No.1 to 3 in the affirmative

and decreed the suit. Being aggrieved by this judgment of

the Trial Court, the defendants approached the Senior Civil

Judge at Koppal. The learned Senior Civil Judge after re-

RSA No. 5196 of 2012

appreciating the oral and documentary evidence, has allowed

the appeal and set aside the judgment and decree passed by

the Trial Court and dismissed the suit filed by the plaintiffs in

O.S.No.160/2008. Being aggrieved by this divergent finding

given by the First Appellate Court, the plaintiffs are before

this Court.

8. Heard the arguments advanced by the leaned

counsel for the appellants and the learned counsel for the

respondents/defendants. Perused the records.

9. The learned counsel for the appellants would

contend that there is no serious dispute of the fact that

Devappa was granted 2 acres 29 guntas and it is the

contention of the defendants that there was no such land

and he was granted only 2 acres 1 gunta. He would contend

that Ex.P1 is a material document which establishes that the

initial grant in favour of all the persons was cancelled by the

Tahasildar and subsequently, fresh grant was made for 4

acres, 4 acres and 4 acres 30 guntas and remaining 2 acres

29 gunts was granted to Devappa. He would contend that

the defendants are not disputing the grant in favour of

RSA No. 5196 of 2012

Devappa, but they are taking inconsistent stand on the

ground that their grant was not cancelled. He would contend

that Ex.P1 establishes that the earlier grant was cancelled

and modified order came to be passed. He would also

contend that the contention of the defendants that

Tahasildar could have granted only 2 acres 1 guntas in

favour of Devappa cannot be accepted as they cannot dictate

terms. He would also contend that the grant order is also not

challenged and though initial encroachment was 29 guntas,

subsequently there was encroachment to the extent of 37

guntas, which is evident from the commissioner's report and

accordingly, plaint was amended. It is contended that 37

guntas was part of 150/4 measuring 2 acres 29 guntas. He

would further assert that the observation of the First

Appellate Court that title deeds are not produced is

erroneous as Ex.P1 itself is a grant order and it amounts to a

title deed. The observation of the First Appellate Court that

Saguvali Chit is not produced cannot be accepted as a Xerox

copy of Saguvali Chit is available. Ex.P1 is not challenged by

the defendants and hence, the Appellate Court was not

justified in reversing the finding of the Trial Court which was

RSA No. 5196 of 2012

on proper appreciation of the evidence. Hence, he would

seek for allowing the appeal by setting aside the impugned

judgment of the First Appellate Court by restoring the

judgment of the Trial Court.

10. Inspite of granting sufficient opportunities, the

learned counsel for the respondents did not appear to

advance his arguments. Hence without any alternative the

arguments on behalf of the respondents are taken as nil and

matter was reserved for judgment.

11. This Court by order dated 14.02.2014 while

admitting the appeal, framed following substantial questions

of law:

1) Whether the lower appellate Court has committed a serious error in ignoring Ex.P.1, 4 to 17 and erred in coming to the conclusion that plaintiffs are not the owners of the suit schedule property?

2) Whether the first appellate Court has committed a serious error in not reassessing the entire evidence in right perspective and therefore the judgment of the first appellate Court is perverse?

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RSA No. 5196 of 2012

12. The plaintiffs have filed this suit for declaration of

ownership and for possession. According to the plaintiffs, suit

schedule property is totally measuring 2 acres 29 guntas in

Survey No.150/4 of Kaltavaragera village of Koppal Taluk.

According to the plaintiffs, the suit property was granted in

favour of Devappa and initially he was in unauthorized

possession, but by granting the suit property, his possession

was confirmed. According to the plaintiffs, Devappa is the

brother of plaintiff No.1 and in a family partition, suit

property was allotted to the share of plaintiff No.1. Initially,

plaintiffs have claimed that the defendants have encroached

to the extent of 29 guntas, but subsequently they got

amended the plaint in view of the report of the surveyor and

claimed 37 guntas.

13. However, the defendants specifically asserted

that the plaintiffs are not in possession of total area

measuring 2 acres 1 guntas in Survey No.150/4 and there

was no land to the extent of 2 acres 29 guntas for allotment

in favour of Devappa. Hence, the assertions made by the

defendants does establish that the defendants have not

disputed grant of 2 acres 1 guntas in favour of Devappa in

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RSA No. 5196 of 2012

Survey No.150/4. Plaintiffs claimed that the grant was in

respect of 2 acres 29 guntas, but the defendants assert that

it was only in respect of 2 acres 1 gunta. However, it is to be

noted here that the defendants cannot direct the

Government as to which property should be allotted and

what should be the extent of the property.

14. The defendants have contended that they have

been granted property under Survey No.152 and they are in

possession to the extent of 4 acres 14 guntas, 4 acres 14

guntas and 4 acres 38 guntas. Ex.D23 discloses that 4 acres

38 guntas was granted in favour of Mallappa, and as per

Ex.D25 property measuring 4 acres 14 guntas each was

granted to defendant No.1 and Basappa. This grant was said

to be on 06.11.1982. However, Ex.P1/order of Tahasildar

dated 07.02.1985 clearly discloses that the grant in survey

No.152 as per Ex.D23, Ex.D25 and Ex.D27 came to be

cancelled and in place of the same, property was granted in

Survey No.150. It is also evident that it was on the basis of

actual survey and possession of the properties. From Ex.P1,

it is evident that the extent was also changed and as per

earlier order, 4 acres 14 guntas each came to be granted in

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RSA No. 5196 of 2012

favour of defendant No.1 and one Basappa. But as per

Ex.P1/modified order, 4 acres came to be granted to each.

According to the plaintiffs, originally 3 acres was granted in

survey No.152 in favour of Devappa and as per revised

order, same was restricted to 2 acres 29 guntas in Survey

No.150.

15. It is important to note hear that none of the

parties have challenged Ex.P1 in all these years. Further, as

per order passed in Ex.P1, mutation was effected in

respective names. The contention of the defendants that

they were not aware of passing of Ex.P1/order and

corresponding change of survey number and extent, cannot

be accepted. Ex.D21 itself is the copy of mutation order,

which is changed in the name of respective grantees in

furtherance of Ex.P1/modified order. Ex.D21 mutation order

came to be passed on 08.01.1994 and Ex.D1 to Ex.D6 RTC

extracts produced by the defendants are not pertaining to

the suit property. But they are with reference to old survey

No.151 and new survey No.152. Ex.P1 clarifies that the

parties are not in possession of Survey No.152 but they are

in possession of Survey No.150 and accordingly as per their

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RSA No. 5196 of 2012

possession, grant order was modified under Ex.P1. On the

contrary, DW1 during his cross-examination has clearly

admitted that he is in possession of the property in Survey

No.150 of Kaltavaragere village.

16. As such, looking to these documentary evidence

and in view of Ex.P1/order of the Tahasildar, Saguvali

certificate issued under Ex.D24 to Ex.D28 do not have any

relevance as they have been cancelled. Ex.P1 specifies that

in respect of survey number and extent, the order under

Ex.D24 to Ex.D28 stands modified. But in respect of other

aspects, it remained undisturbed. These documents,

especially, Ex.P1, clearly establish that 2 acres 29 guntas

was granted in favour of Devappa and 4 acres came to be

granted in favour of defendant No.1 while 4 acres 28 guntas

and 4 acres came to be granted in favour of Mallappa and

Basappa, respectively. Ex.P1 was not challenged by any of

the parties. Even the documents relied by the defendants

disclose that their claim is also based on Ex.P1.

17. The Trial Court has appreciated all these aspects

in detail. But quite contrary to the same, the First Appellate

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RSA No. 5196 of 2012

Court has taken a contrary view holding that the possession

of Devappa under Ex.P1 cannot be inferred when the order

under Ex.P1, which is based on actual survey and possession

of the parties, is unchallenged.

18. The First Appellate Court is not justified in

ignoring Ex.P1 and considering only Ex.D23 to Ex.D28 alone.

Ex.P1 clearly establish that the order under Ex.D23, Ex.D25

and Ex.D27 stands revoked and modified and in that event

Ex.P1 will prevail and not Ex.D23, Ex.D25 and Ex.D27.

19. Apart from that the First Appellate Court has

made much reliance on issuance of Saguvali Chit and non-

amendment pertaining to date of grant etc., in paragraph 23.

It has no relevancy at all and the fact that under Ex.P1

plaintiff was granted 2 acres 29 guntas is undisturbed. The

defendants claimed that plaintiff could not have been

granted 2 acres 29 guntas and his grant was restricted to 2

acres 1 gunta only. But the defendants at the first instance,

did not challenge Ex.P1. Apart from that, they cannot dictate

the terms of grant to the Government as to which land

should be granted and to what extent. It is based on

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RSA No. 5196 of 2012

possession and the defendants are in no better position as

compared to Devappa also. Without challenging Ex.P2-Hadda

Bastu sketch, the First Appellate Court gone to the extent of

holding that it is an imaginary one, only on the basis of some

dates referred in Saguvali Chit. When Ex.P2 is not challenged

along with Ex.P1, only on the basis of certain discrepancies

in dates, the First Appellate Court could not have gone to the

extent of disbelieving the entire revenue records, which are

not challenged by the defendants and the First Appellate

Court has presumed certain aspects on its own. The First

Appellate Court has also ignored the admission of defendants

themselves that plaintiffs are the owners to the extent of 2

acres 1 gunta in place of 2 acres 29 guntas. It is based on

Ex.P1 and the entire approach of the First Appellate Court, is

erroneous and arbitrary and not based on documentary

evidence. The admission of DW1 was also ignored by the

learned Senior Civil Judge, which has resulted in miscarriage

of justice.

20. Further, from Ex.P2 it is evident that surveyor has

measured the property on 14.09.2005 and it is supported by

Mahazar and the surveyor, who was examined as CW1, was

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RSA No. 5196 of 2012

cross-examined, however nothing was elicited so as to

impeach his evidence. Nothing worthy is elicited in his cross-

examination. The report of the surveyor clearly establishes

that 37 guntas was encroached and it is supported by Ex.P2.

The learned Senior Civil Judge ignoring all these material

aspects has given unnecessary importance to Ex.D23 to

Ex.D28 and further ignored Ex.P1 on the ground that

Saguvali Chit is not produced. However, Xerox copy Saguvali

Chit is available in the file but the learned Senior Civil Judge

went on expressing that original is not produced and tries to

support his contention based on some variance in the dates.

But when the documents are not disputed or challenged, the

question of First Appellate Court ignoring those documents

does not arise at all. The defendants themselves have not

disputed the title of the plaintiffs over 2 acres 29 guntas and

now the First Appellate Court has taken an inconsistent

stand, which is not the case made out by the defendants and

the First Appellate Court is justified in holding that plaintiff

No.2 being husband of plaintiff No.1 does not acquire any

title and he cannot seek declaration. No doubt, this finding

may be proper but the rejection of claim of plaintiff No.1 is

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RSA No. 5196 of 2012

erroneous and the entire approach of the learned Senior Civil

Judge is against the settled principles of law. The learned

Senior Civil Judge did not appreciate Ex.P1 in proper

perspective and did not analyze the evidence and has given

undue importance to Ex.D23 to Ex.D28 which came be to

modified under Ex.P1 and the learned Senior Civil Judge

completely brushed aside Ex.P1. Hence, it is evident that the

First Appellate Court has committed serious error in ignoring

Ex.P1 and Ex.P4 to Ex.P17 and also erred in coming to the

conclusion that the plaintiffs are not owners of the suit

schedule property. The First Appellate Court has also

committed a serious error in not reassessing the evidence in

right perspective, especially with respect to Ex.P1 and other

documents. Looking to these facts and circumstances, the

substantial question of law framed by this Court is answered

in the affirmative in favour of the plaintiffs. As such, the

appeal needs to be allowed and accordingly, I proceed to

pass the following:

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RSA No. 5196 of 2012

ORDER

i) The appeal stands allowed.

ii) The judgment and decree in R.A.No.29/2021 passed by the learned Senior Civil Judge, Koppal is hereby set aside. The judgment and decree passed by the Civil Judge, Koppal in O.S.No.160/2008 is restored with a modification that plaintiff No.1 is declared as owner of the suit land with a direction to defendants 1 to 4 to surrender the encroached vacant possession of the suit property to the extent of 37 guntas to plaintiff No.1 within three months from the date of this order.

iii) In view of disposal of the appeal, pending interlocutory applications, if any, do not survive for consideration and are disposed of accordingly.

Sd/-

JUDGE

YAN