Karnataka High Court
Sri Thirakayya S/O Adiveyya ... vs Sri Shantappa S/O Channaveerappa ... on 27 June, 2023
Bench: Anil B Katti
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RSA No. 255 of 2008
IN THE HIGH COURT OF KARNATAKA
DHARWAD BENCH
DATED THIS THE 27TH DAY OF JUNE, 2023
BEFORE
THE HON'BLE MR JUSTICE ANIL B KATTI
RSA NO. 255 OF 2008
BETWEEN:
SRI. THIRAKAYYA S/O. ADIVEYYA NANDIHALLIMATH,
AGED ABOUT 48 YEARS, OCC: AGRICULTURE
R/O: MAHUR VILLAGE, TQ: SAVANUR,
DIST: HAVERI-581205.
...APPELLANT
(BY SRI. SHARAD V. MAGADUM, ADV.)
AND:
Digitally signed 1. SRI. SHANTAPPA S/O. CHANNAVEERAPPA ANGADI
by SAMREEN
SAMREEN AYUB AGE: MAJOR, OCC: AGRICULTURE
AYUB DESHNUR
DESHNUR Date: R/O: MAHUR VILLAGE, TQ: SAVANUR,
2023.06.28
16:17:21 -0700 DIST: HAVERI-581205
2. SRI. BASHETTEPPA S/O. CHANNAVEERAPPA ANGADI
SINCE DECEASED BY LR'S
2(1)(a) RUDRAVVA W/O BASHETTEPPA ANGADI
AGE: 72 YEARS, OCC: H/W
R/O. MAHUR VILLAGE,
TQ: SAVANUR DIST: HAVERI
2(1)(b) SRI. GANGAPPA S/O BASHETTEPPA ANGADI
AGE: 53 YEARS, OCC: DOCTOR
R/O: MAHUR VILLAGE,
TQ: SAVANUR, DIST: HAVERI.
2(1)(c) SRI. BASAPPA S/O. BASHETTEPPA ANGADI,
AGE: 48 YEARS, OCC: AGRICULTURE
R/O: MAHUR VILLAGE,
TQ: SAVANUR, DIST: HAVERI.
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RSA No. 255 of 2008
3. SRI. BASAVANNEPPA S/O. CHANNAVEERAPPA ANGADI
SINCE DECEASED BY LR'S
3.(a) SMT. PARVATEVVA W/O BASAVANNEPPA ANGADI
AGE: 58 YEARS, OCC: HOUSE HOLD WORK
3.(b) TIRAKAPPA S/O BASAVANNEPPA ANGADI
AGE: 38 YEARS, OCC: AGRICULTURE
3.(c) CHANNAVEERAPPA S/O BASAVANNEPPA ANGADI
AGE: 32 YEARS, OCC: DOCTOR
3.(d) BASAVARAJ S/O BASAVANNEPPA ANGADI
AGE: 30 YEARS, OCC: AGRICULTURE
ALL ARE R/O. MAHUR VILLAGE,
TQ: SAVANUR, DIST: HAVERI.
...RESPONDENTS
(BY SRI. MAHESH WODEYAR, ADV. FOR R1, R2(a) - R2(c)
R3(A), R3(B), R3(C), R3(D) - NOTICE SERVED)
***
THIS REGULAR SECOND APPEAL FILED U/S. 100 OF CPC
AGAINST THE JUDGEMENT & DECREE DTD 12.10.2007 PASSED BY
THE ADDL. CIVIL JUDGE, (SR.DN), & JMFC., HAVERI IN R.A.NO
27/2003 CONFIRMING THE JUDGEMENT AND DECREE PASSED BY
THE CIVIL JUDGE, (JR.DN) SAVANUR IN O.S. NO. 59/99 DATED
24/2/2003 AND FURTHER DECREE THE SUIT OF THE APPELLANT.
THIS REGULAR SECOND APPEAL COMING ON FOR FINAL
HEARING AND THE SAME HAVING BEEN HEARD AND RESERVED FOR
JUDGMENT ON 16.03.2023, THIS DAY, THE COURT, DELIVERED THE
FOLLOWING:
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RSA No. 255 of 2008
JUDGMENT
Appellant/plaintiff feeling aggrieved by the judgment of
first Appellate Court on the file of Addl. Civil Judge (Sr.Dn.) and
JMFC, Haveri, in R.A.No.27/2003 dated 12.10.2007 preferred
this appeal.
2. Parties to the appeal are referred with their ranks as
assigned in the trial Court for the sake of convenience.
3. The factual matrix leading to the case of plaintiff
can be stated in nutshell to the effect that the grandfather of
plaintiff - Gurushantayya had taken land bearing R.S.No.6/2
measuring 6 acres 39 guntas and R.S.No.6/3 measuring 5
acres 39 guntas on lease from landlord in the year 1960. On
coming into force of Karnataka Land Reforms Act,
Gurushantayya filed form No.7. The Land Tribunal has granted
occupancy rights on 06.04.1976 and accordingly, patta was
issued on 24.03.1979. The name of grandfather of plaintiff is
accordingly entered in the records evidenced in M.E.No.641.
The pot-hissa in the original records was effected in the year
1960 itself and defendants' predecessor was present at the
time of hissa measurement. In the family arrangement,
RSA No. 255 of 2008
R.S.No.6/3 measuring 5 acres 39 guntas fallen to the share of
plaintiff and accordingly, M.E.No.786 came to be certified on
09.03.1984. Plaintiff having suspected that defendants have
encroached some portion of land bearing R.S.No.6/3 measuring
5 acres 39 guntas filed application before the ADLR, Savanur,
for measurement of R.S.No.6. Notices were issued to all pot-
hissa owners and defendants were present. The Taluka
Surveyor measured the entire R.S.No.6 and prepared PT sheet
on 16.04.1999 wherein it was found that defendants who are
owners of R.S.No.6/1 encroached to the extent of 37 guntas of
land out of R.S.No.6/3 which is the suit property involved in the
suit. Defendants have refused to restore the possession of
plaintiff related to suit property. Therefore, the plaintiff was
constrained to file the suit on hand for the relief claimed in the
suit.
4. In response to the suit summons, defendants
appeared and defendant No.1 filed written statement denied
the allegations of alleged encroachment of 37 guntas in portion
of land belonging to plaintiff bearing R.S.No.6/3 measuring 5
acres 39 guntas. It is the contention of defendants that
originally land bearing R.S.No.6 of Mahur village was measuring
23 acres 23 guntas and one Venkobachar S/o Rangachar was
RSA No. 255 of 2008
the owner of suit property. The said Venkobachar leased 12
acres to the father of defendants and 11 acres 23 guntas to
Gurushantayya i.e., grandfather of plaintiff in 1960-61.
However, plaintiff by colluding with revenue authorities got
entered his name to the extent of 12 acres 39 guntas instead of
11 acres 23 guntas and the name of defendants came to be
entered to the extent of 11 acres 23 guntas instead of 12 acres
39 guntas. The ancestors of plaintiff and defendants filed Form
No.7 as per the entries found in the record of rights. The suit
property measuring 37 guntas is part and parcel of Sy.No.6/1
which is in lawful possession and enjoyment of defendants for
the last 37 years. The defendants filed O.S.No.44/1999 and
unless the said suit is decided, plaintiff is not entitled for any
relief claimed in the suit. Therefore, on these grounds prayed
for dismissal of the suit.
5. The trial Court has framed necessary issues.
Plaintiff to prove his case relied on the evidence of PWs-1 and 2
and the documents Ex.P.1 to Ex.P.24. The defendants relied on
the evidence of DWs-1 and 2 and the document at Ex.D.1. The
trial Court after appreciation of evidence on record dismissed
the suit.
RSA No. 255 of 2008
6. Plaintiff being aggrieved by the dismissal of the suit
filed appeal before the first Appellate Court on the file of Addl.
Civil Judge (Sr.Dn.) and JMFC, Haveri, in R.A.No.27/2003. The
first Appellate Court after re-appreciation of evidence on record
dismissed the appeal and confirmed judgment and decree of
trial Court.
7. Appellant/plaintiff in this second appeal challenged
the correctness and legality of judgment of both Courts below
contending that the findings recorded by Courts below on the
issues are contrary to the oral and documentary evidence
placed on record. The PT sheet issued by the Taluka Surveyor
has not been properly considered and appreciated by both
Courts below with reference to evidence on record and as a
result, recorded erroneous reasonings in dismissing the suit of
plaintiff. The Courts below have also failed to take note of the
dismissal of O.S.No.44/1999 filed by defendants and its effect
with reference to the evidence on record and the relief claimed
by plaintiff. The approach and appreciation of oral and
documentary evidence by both Courts below are contrary to
oral and documentary evidence on record. Therefore, prayed
for allowing the second appeal and to set aside the judgment of
Courts below. Consequently, to decree the suit of plaintiff.
RSA No. 255 of 2008
8. In response to notice, respondents appeared
through counsel.
9. This Court by order dated 17.07.2013 framed the
following substantial question of law:
" Whether in the facts and circumstances of the
case the Courts below were justified in dismissing the
suit without properly considering the findings recorded
in O.S.No. 44/1999 and Ex. P.10 - P.T. sheet?
10. Heard the arguments of both sides.
11. On careful perusal of oral and documentary
evidence placed on record by parties to the suit, it would go to
show that the grandfather of plaintiff Gurushantayya had taken
land bearing R.S.No.6/2 measuring 6 acres 39 guntas and
R.S.No.6/3 measuring 5 acres 39 guntas on lease from the
landlord. On coming into force of the Karnataka Land Reforms
Act, grandfather of plaintiff -Gurushantayya filed form No.7
Ex.P.1. The Land Tribunal after enquiry granted occupancy
rights on 06.04.1976 Ex.P.2 and patta came to be issued on
24.03.1979, Ex.P.3. Therefore, name of grandfather of plaintiff
is entered in the records evidenced under M.E.No.641 Ex.P.9.
In the family arrangement, land bearing R.S.No.6/3 fallen to
the share of plaintiff evidenced under M.E.No.786 dated
RSA No. 255 of 2008
09.03.1984, Ex.P.7. In pursuance of the same, name of
plaintiff is recorded in the record of rights related to land
bearing R.S.No.6/3 measuring 5 acres 39 guntas. The plaintiff
since then is in actual possession and enjoyment of the said
property.
12. On the other hand, it is the defence of defendants
that originally land bearing Sy.No.6 of Mahur village was totally
measuring 23 acres 23 guntas. One Venkobachar S/o
Rangachar was the owner of said property. The said
Venkobachar had leased 12 acres of land to the father of
defendants and 11 acres 23 guntas to Gurushantayya,
grandfather of plaintiff in the year 1960. However, plaintiff in
collusion with revenue authorities got interchanged the extent
of land and got entered his name with respect to 12 acres 39
guntas instead of 11 acres 23 guntas and the name of
defendants came to be recorded to the extent of 11 acres 18
guntas instead of 12 acres 39 guntas. The ancestors of plaintiff
and defendants filed Form No.7 to the Land Tribunal as per the
entries in the record of rights. Therefore, the suit property is
part and parcel of R.S.No.6/1 which is in lawful possession and
enjoyment of defendants for the last 37 years.
RSA No. 255 of 2008
13. Learned counsel for respondents/defendants
submitted that the substantial question of law framed by this
Court does not arise and the concurrent findings of both Courts
below on facts cannot be re-appreciated by the evidence on
record in the absence of material irregularities or perversity. In
support of his contention relied on the judgment of Hon'ble
Apex Court in RAMATHAL VS. MARUTHATHAL AND OTHERS
reported in [(2018) 18 SCC 303] whereby it has been
observed and held that:
"A prerequisite for entertaining a second appeal is
the involvement of a substantial question of law -
Further, when appreciation of evidence suffers from
material irregularities and when there is perversity in
the findings of the court which are not based on any
material, the court is empowered to interfere on a
question of fact as well - However, unless and until
there is absolute perversity, it would not be
appropriate to interfere with a question of fact just
because two views are possible."
14. Learned counsel for respondents on the same
principles also relied on the judgment of Hon'ble Apex Court in
THULASIDHARA AND ANOTHER VS. NARAYANAPPA AND
OTHERS reported in [(2019) 6 SCC 409] wherein the Hon'ble
Apex Court found that the High Court failed to formulate proper
question of law while entertaining the second appeal. On facts,
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RSA No. 255 of 2008
it was held that the High Court erred in interfering with well
reasoned concurrent findings of trial Court and first Appellate
Court based on proper appreciation of evidence by re-
appreciating entire evidence on record. On going through the
principles enunciated in both these decisions of Hon'ble Apex
Court, it is evident that while entertaining second appeal
substantial question of law has to be formulated and the Court
of second appeal is empowered to interfere on question of fact
when there is perversity in the findings of the Court. In the
present case indisputably, on the basis of PT sheet Ex.P.10, the
defendants filed O.S.No.44/1999 and said suit during pendency
of the present suit came to be dismissed. The question of fact
recorded by both the Courts below with reference to dismissal
of suit filed by the defendants and the PT sheet Ex.P.10 and its
effect will have to be considered. Therefore, this Court has
framed above referred substantial question of law.
15. The crux of the matter for alleged encroachment by
defendants claimed by plaintiff is based on the PT sheet
prepared by ADLR Ex.P.10. Indisputably, defendants claiming
title over the encroached portion shown in the PT sheet Ex.P.10
had filed O.S.No.44/1999 for the relief of declaration and
consequential relief of injunction. The said suit filed by
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RSA No. 255 of 2008
defendants during the pendency of present suit came to be
dismissed. Whether the said dismissal of suit O.S.No.44/1999
filed by defendants would enure to the benefit of plaintiff to
claim that defendants have encroached to an extent of 37
guntas in the land bearing R.S.No.6/3 measuring 5 acres 39
guntas and to seek mandatory injunction as claimed in the suit
is to be decided.
16. The defendants while stating true facts of the case
in paragraph 14 of the written statement contended that
plaintiff in collusion with the revenue authorities got entered his
name to the extent of 12 acres 39 guntas instead of 11 acres
23 guntas and the name of defendants is entered to the extent
of 11 acres 23 guntas instead of 12 acres 39 guntas. This fact
has gone unnoticed by defendants or their ancestors and they
filed Form No.7 as per the entries found in the records. On
perusal of pot-hissa effected in the year 1960 Ex.P.24, it would
go to show that original land bearing R.S.No.6 in all measuring
22 acres 36 guntas was divided into four parts i.e., Sy.No.6/1
measuring 6 acres 20 guntas, 6/2 measuring 7 acres, 6/3
measuring 6 acres and 6/4 measuring 5 acres and total extent
is shown as 24.20 guntas out of which pot-kharab of 4 guntas
is deducted and accordingly, the total extent is shown as 24.16.
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RSA No. 255 of 2008
This division of pot-hissa was effected in the presence of
grandfather of plaintiff and the father of defendants. The same
remained unquestioned till the date of filing of the present suit.
17. It is thereafter on coming into force of Karnataka
Land Reforms Act, grandfather of plaintiff filed Form No.7 with
reference to land bearing R.S.No.6/2 measuring 6 acres 39
guntas and 6/3 measuring 5 acres 39 guntas Ex.P.1. The Land
Tribunal on enquiry granted occupancy rights on 06.04.1976
Ex.P.3 and patta came to be issued on 24.03.1979 Ex.P.3 and
accordingly, name of grandfather of plaintiff is entered under
M.E.No.641 Ex.P.9. In the family partition, land bearing
R.S.No.6/3 measuring 5 acres 39 guntas fallen to the share of
plaintiff which is evidenced from M.E.No.786 Ex.P.7 and
pursuant to entries in the record of rights Ex.P.4 to Ex.P.6.
Therefore, at this point of time, defendants cannot contend that
the father of defendants took 12 acres of land on lease and
Gurushantayya took 11 acres 23 guntas from the owner of land
Venkobachar S/o Rangachar. Thereafter, plaintiff in collusion
with the revenue authorities got interchanged name of plaintiff
and defendants as contended in paragraph 11 of the written
statement, cannot be legally sustained.
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RSA No. 255 of 2008
18. Indisputably, plaintiff on the basis of the PT sheet
prepared by ADLR dated 16.04.1999 Ex.P.10 is claiming that
defendants have encroached 37 guntas of land in Sy.No.6/3
belonging to plaintiff. On such allegation, plaintiff is claiming
the relief of mandatory injunction and to restore the possession
of plaintiff over encroached area of 37 guntas by defendants in
the land belonging to him bearing R.S.No.6/3 measuring 5
acres 39 guntas. On the other hand, defendants have claimed
that suit property is part and parcel of Sy.No.6/1. The burden
is on the plaintiff who has approached the Court to prove the
fact in issue that defendants have encroached the area of 37
guntas in the land bearing R.S.No.6/3 measuring 5 acres 39
guntas. The failure of defendants to prove their possession in
O.S.No.44/1999 leading to dismissal of their suit cannot be a
ground to hold that plaintiff has proved alleged encroachment
of defendants to the extent of 37 guntas in the land bearing
R.S.No.6/3.
19. On the basis of Ex.P.24, it can be said that at an
undisputed point of time, pot-hissa has been effected in the
entire land bearing R.S.No.6 and four divisions has taken place
as referred above. It is thereafter on coming into force of
Karnataka Land Reforms Act, parties having acted upon the
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RSA No. 255 of 2008
pot-hissa Ex.P.24 and pursuant entries in the record of rights
filed Form No.7 and accordingly, the Land Tribunal on enquiry
granted occupancy rights with respect to R.S.Nos.6/1 and 6/2
to the father of defendants and R.S.Nos.6/7 and 6/3 in favour
of grandfather of plaintiff. The above referred pot-hissa
effected as per Ex.P.24 and the grant of occupancy rights have
never been challenged by parties to the suit. Therefore, pot-
hissa map prepared in the year 1960 as per the pot-hissa
division recorded in Ex.P.24 should have been the basis for
ADLR to prepare PT sheet as per Ex.P.10. The plaintiff and
defendants who rely on this PT sheet as per Ex.P.10 to assert
their respective claim referred above have not chosen to
examine the author of PT sheet Ex.P.10 - ADLR, Savanur. The
PT sheet issued as per Ex.P.10 does not reflect the division of
pot-hissa on the basis of PT sheet prepared in the year 1960.
Therefore, on what basis now again the original land bearing
R.S.No.6 was measured and pot-hissa has been effected has
not been brought on record by either of the parties to the suit.
Therefore, mere showing extent of 37 guntas in orange colour
in the PT sheet and the location of land belonging to plaintiff
and defendants itself cannot be relied to prove the alleged
encroachment of 37 guntas claimed by plaintiff in the land
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RSA No. 255 of 2008
belonging to him bearing R.S.No.6/3. Other than the oral
testimony of PWs-1 and 2 and the PT sheet Ex.P.10, there is
virtually no any evidence on record to prove alleged
encroachment of 37 guntas by defendants in the land belonging
to plaintiff bearing R.S.No.6/3 measuring 5 acres 39 guntas.
20. Learned counsel for respondents relied on the co-
ordinate bench judgment of this Court in CHENNABASAPPA
VS. SAFOORABI AND ANOTHER reported in [2012 (4)
KCCR 3514]. This Court was considering whether seeking of
declaratory relief in a suit for mandatory injunction is a must in
all cases. In view of the dispute regarding the construction and
correct measurement of the properties subjected for sale and
on facts of the case held that such declaration is a must and
without it, the relief of mandatory injunction cannot be granted.
21. Learned counsel for respondents also placed
reliance on the judgment of Hon'ble Apex Court in
T.V.RAMAKRISHNA REDDY VS. M.MALLAPPA AND
OTHERS [CIVIL APPEAL No.5577/2021 (ARISING OUT
OF SPECIAL LEAVE PETITION (C) No.10621/2020
DECIDED ON 07.09.2021]. The Hon'ble Apex Court while
considering whether the suit simplicitor for permanent
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RSA No. 255 of 2008
injunction without claiming declaration of title not
maintainable? The Hon'ble Apex Court held that where the
plaintiff's title is not in dispute or under a cloud, a suit for
injunction could be decided with reference to the finding on
possession. It has been further held that this is not a case
where the plaintiff-appellant can be said to have clear title over
suit property or that there is no cloud on plaintiff/appellant's
title over the suit property. In view of the principles
enunciated in the aforementioned two judgments, it is evident
that where there is no dispute of title or cloud of doubt, the suit
simplicitor for injunction is maintainable otherwise the relief of
declaration is a must.
22. In the present case, the title of grandfather of
plaintiff Gurushantayya by virtue of grant of occupancy rights
with respect to Sy.No.6/2 measuring 6 acres 39 guntas and 6/3
measuring 5 acres 39 guntas is not in dispute by the
defendants. There is no any cloud of doubt of title with regard
to the acquisition of the suit property by grant of occupancy
right in favour of grandfather of plaintiff -Gurushantayya.
Similarly, there is no dispute regarding the grant of occupancy
right in favour of father of defendants with respect to
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RSA No. 255 of 2008
R.S.Nos.6/1 and 6/2. Therefore, suit of plaintiff for the relief of
mandatory injunction is maintainable.
23. In view of the above recorded reasons, it has been
observed and held that on the basis of PT sheet Ex.P.10, the
plaintiff has failed to prove alleged encroachment of defendants
to the extent of 37 guntas in the land belonging to the plaintiff
bearing R.S.No.6/3 measuring 5 acres 39 guntas. The trial
Court as well as the first Appellate Court have rightly
appreciated the evidence on record and effect of dismissal of
suit of defendants in O.S.No.44/1999 would not enure to the
benefit of plaintiff to prove the alleged encroachment claimed in
the PT sheet as per Ex.P.10. The findings recorded by both the
Courts below are based on material evidence on record and the
same does not call for any interference by this Court.
Accordingly, the substantial question of law framed as referred
above is answered in affirmative. Consequently, proceed to
pass the following:
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RSA No. 255 of 2008
ORDER
The regular second appeal filed by the appellant/plaintiff
is hereby dismissed.
The judgment of the first Appellate Court on the file of
Addl. Civil Judge (Sr.Dn.) and JMFC, Haveri, in R.A.No.27/2003
dated 12.10.2007 which confirmed the judgment and decree of
trial Court in O.S.No.59/1999 on the file of Civil Judge (Jr.Dn.)
and JMFC, Savanur, dated 24.02.2003 are hereby confirmed.
The registry is directed to transmit the records with the
copy of this judgment to trial Court.
(Sd/-)
JUDGE
Jm/-
