Karnataka High Court
P Shantharama Saralya vs Vishwanatha Gatti on 14 March, 2023
Bench: H.P.Sandesh
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RSA No. 1681 of 2019
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 14TH DAY OF MARCH, 2023
BEFORE
THE HON'BLE MR JUSTICE H.P.SANDESH
REGULAR SECOND APPEAL NO.1681 OF 2019 (INJ)
BETWEEN:
1. P SHANTHARAMA SARALYA
S/O VASUDEVA SARALAYA
HINDU
AGED ABOUT 79 YEARS
R/AT PILAR, SOMESHWARA VILLAGE
P.O., KOTEKAR, MANGALURU TALUK
D.K.DISTRICT-575022
Digitally signed
by SHARANYA T ...APPELLANT
Location: HIGH
COURT OF (BY SRI G BALAKRISHNA SHASTRY, ADVOCATE)
KARNATAKA
AND:
1. VISHWANATHA GATTI
S/O VASU GATTI
HINDU, MAJOR
R/AT PILAR SOMESHWARA VILLAGE
KOTEKAR MANGALORE
D.K.DISTRICT-575022
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RSA No. 1681 of 2019
2. PURUSHOTHAMA GATTY
S/O LATE MUTHAMMA
HINDU, MAJOR
R/AT KACHAR HOUSE
KOTEKAR POST, MANGALURU TALUK
D.K.DISTRICT-575022
...RESPONDENTS
THIS R.S.A. IS FILED UNDER SECTION 100 OF CPC
AGAINST THE JUDGMENT AND DECREE DATED 24.06.2019
PASSED IN R.A.NO.166/2016 ON THE FILE OF THE
PRINCIPAL SENIOR CIVIL JUDGE AND CJM, MANGALURU
AND ETC.
THIS R.S.A. COMING ON FOR ADMISSION THIS DAY,
THE COURT DELIVERED THE FOLLOWING:
JUDGMENT
This matter is listed for admission. Heard the learned
counsel appearing for the appellant.
2. This appeal is filed challenging the judgment
and decree dated 24.06.2019 passed in R.A.No.166/2016
on the file of the Principal Senior Civil Judge and CJM,
Mangaluru.
RSA No. 1681 of 2019
3. The factual matrix of the case of the plaintiff
before the Trial Court is that he is the co-owner in
possession and enjoyment of 1.08 acres of land in
Sy.No.3/12 of Someshwara village, Mangaluru taluk. The
total extent of said survey number is 1.65 acres which was
originally acquired by the father of the plaintiff along with
other properties by way of partition deed and father of the
plaintiff died intestate leaving behind four sons and four
daughters as his legal heirs. The plaintiff is in undisturbed
possession of the schedule property as absolute owner
without any hindrance from anybody. The revenue
records such as RTC stood in the name of the plaintiff and
he has been paying the assessment to the concerned
authority.
4. It is further contended that the defendants have
filed declaration suit in respect of Sy.No.33/12 along with
other lands before the Land Tribunal in LRT No.222/79-80
and the Land Tribunal passed an order dated 29.08.1980
and granted the claim of the defendant in respect of
RSA No. 1681 of 2019
schedule property. The defendant preferred an appeal
against the order of the Tribunal in LRA(TT) 4172/86 and
appellate authority passed an order dated 19.07.1989
confirming occupancy right to the extent of land as shown
in the survey sketch. As per the measurement, the extent
of granting of occupancy right in the said survey number
that of 25 cents even though in the order, the extent is
stated as 35 cents. As against the said order, the plaintiff
and defendants have preferred revision before this Court
which was dismissed on 09.11.1993 by confirming the
order of the appellate authority. The plaintiff submits that
out of total extent of 1.65 acres in the said survey
number, 7 cents granted by the Land Tribunal to one
Kotiappa Poojary, 25 cents gifted by the plaintiff to the
school and 25 cents granted to the defendant and
remaining extent of 1.08 acres is the schedule property
which is in possession of the plaintiff. The plaintiff also
contended that he used to take the green leaves from the
schedule property to his agricultural property of paddy
field, areca nut and coconut gardens. The defendants are
RSA No. 1681 of 2019
not in cordial terms with the plaintiff since several years
litigations were taken place between them. The defendants
tried to interfere with the suit schedule property hence,
the suit was filed.
5. In pursuance of suit summons, the defendants
appeared and defendant No.1 filed his written statement.
The very claim of the defendants is that they are in
possession to the extent of 25 cents is not correct. The
plaint is tracing the title of the plaintiff to the suit schedule
property. The defendants denied that the plaintiff is the
co-owner in possession and enjoyment of the suit schedule
property and also denied all other averments made in the
plaint. It is further contended that the appellate authority
has passed an order confirming the occupancy right only
to the extent of 35 cents in R.S.No.33/12. Eversince then
and even prior to that, the defendants were in actual
possession and enjoyment of 35 cents of land along with
other properties and not 25 cents as contended by the
plaintiff. It is also the claim of the defendants that the
RSA No. 1681 of 2019
application was filed under Form No.7A for grant of plaint
schedule property and other properties under the capacity
of Valagenidhar. The said Muthamma died during the
pendency of the proceedings before the Land Tribunal.
Subsequently, the legal heirs of said Muthamma continued
the proceedings before the Land Tribunal. The plaintiff
totally suppressed the said facts. Therefore, the legal
heirs of Muthamma are necessary party to the suit.
Hence, the suit is not maintainable for non-joinder of
necessary parties.
6. The Trial Court after considering both oral and
documentary evidence placed on record answered all the
issues as negative and dismissed the suit. Being
aggrieved by the judgment and decree of the Trial Court,
an appeal was filed before the First Appellate Court and
the First Appellate Court also on considering the material
available on record formulated the points in keeping the
grounds urged in the appeal and also on re-appreciation of
both oral and documentary evidence placed on record
RSA No. 1681 of 2019
comes to the conclusion that the plaintiff has not proved
the case to the extent of 1 acre 8 guntas and answered
the point as negative and dismissed the appeal. Hence,
the present appeal is filed before this Court.
7. The learned counsel appearing for the appellant
would vehemently contend that both the Courts have
committed an error in dismissing the suit and fails to take
note of the fact that the occupancy right was granted as
per the survey sketch which is a part of the order of the
Land Tribunal and that aspect is clear from the recitals in
the operative portion of the order of the Land Tribunal
and also clear from the order of the Land Reforms
Appellate Authority. The Land Reforms Appellate Authority
in its order stated that the respondent shall be registered
as an occupant in respect of 0.35 cents of land in
Sy.No.33/12 which is shown as paddy field in pencil in the
sketch of the Tribunal surveyor. The counsel also submits
that it is clear that what is granted in favour of respondent
No.1 is the area marked in the sketch in pencil shown as
RSA No. 1681 of 2019
paddy field. The counsel also submits that said area is only
to the extent of 25 cents and not 35 cents and though it is
mentioned as 35 cents for the granted land factually
granted for 25 cents and respondent No.1 is in possession
of 25 cents in Sy.No.33/12. This has not been considered
by both the Courts. Hence, the counsel would contend
that both the Courts have committed an error in giving the
findings against the sketch and the sketch will prevail over
the boundaries and measurements mentioned in the deed.
The counsel also submits that this Court has to frame the
substantial question of law with regard to whether the
both the Courts have erred in law in ignoring the
measurement stated in the order of the Land Tribunal in
the survey sketch as per Ex.P2 and as modified by the
Land Reforms Appellate Authority as per Ex.P3 and hence,
it requires interference of this Court.
8. Having heard the counsel for the appellant and
also on perusal of the material available on record, it
discloses that the plaintiff has sought the relief of
RSA No. 1681 of 2019
permanent injunction in respect of 1 acre 8 guntas and it
is also the claim that he was the owner to the extent of
1.65 acres and out of that 7 cents granted by the Land
Tribunal to one Kotiappa Poojary, 25 cents gifted by the
plaintiff to the school, 25 cents granted to the defendants
and remaining extent of 1.08 acres is the schedule
property which is in the possession of the plaintiff. Having
heard the counsel for the appellant it is not in dispute that
an occupancy right was granted in favour of the
defendants by the Land Tribunal and the same was
modified by the Land Reforms Appellate Authority in
coming to the conclusion that to the extent of 35 cents but
the counsel would contend that the order is very clear that
in terms of the sketch the defendant is in possession of 25
cents. But the fact is that the appellate tribunal made it
clear that 35 cents as shown in the sketch in the pencil
with regard to the paddy field. When the Appellate
Tribunal set aside the order of the Land Tribunal and
modified the order to the extent of 35 cents, the plaintiff
cannot claim the injunction in respect of including of other
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RSA No. 1681 of 2019
10 cents of land as it is only to the extent of 25 cents.
The order of the First Appellate Court though challenged
by filing revision before this Court and same was also
dismissed. Hence, now, the plaintiff cannot contend that it
is only 25 cents and not 35 cents. Both the Courts have
also taken note of the material available on record and
comes to the conclusion that the grant is made in favour
of the defendant to the extent of 35 cents and Trial Court
also in paragraph 13 extracted the cross-examination of
PW1 with regard to the order passed by the Tribunal and
also with regard to the question was put to whether he has
taken back the remaining area of 10 cents and in detail
discussed while answering issue No.1 and comes to the
conclusion that the plaintiff has not proved the possession
to the extent what was claimed to the extent of 1 acre 8
cents. The First Appellate Court also on re-appreciation of
both oral and documentary evidence placed on record and
having reassessed the evidence formulated the point with
regard to the grounds urged in the appeal and also in
paragraph 31 discussed in detail regarding the area that is
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RSA No. 1681 of 2019
total area and granting of 7 cents in favour of Kotiappa
Poojary and also taken note of Ex.P24 and 25 cents gifted
to school as evident from Ex.P27 and 35 cents granted to
the defendant as contended and comes to the conclusion
that the evidence which has been led before the Court and
also considering the evidence of PW1, who is claiming that
the land granted only 25 cents and also observed that the
plaintiff has not chosen to examine the owners of the
adjacent lands or localities to prove that he has been in
possession and enjoyment of 1.08 acres of land in
Sy.No.33/12.
9. Having considered the material available on
record and considering the evidence of PW1 comes to the
conclusion that the very contention of the plaintiff that the
defendants are in possession of only to the extent of 25
cents and not 35 cents and the same has not been
accepted and the First Appellate Court in paragraph 33
discussed in detail with regard to the dispute between the
parties before the Land Tribunal as well as the Appellate
Authority and also observed that grant was made to the
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RSA No. 1681 of 2019
extent of 35 cents in favour of the defendants not 25 cents
as contended by the plaintiff and hence, dismissed the
appeal.
10. Having considered both oral and documentary
evidence placed on record and also the admission given by
PW1 which has been extracted by the Trial Court while
considering the material available on record particularly, in
paragraph 13 in detail discussed the same and First
Appellate Court also on re-appreciation of both oral and
documentary evidence placed on record rightly comes to
the conclusion that the plaintiff has not established the
possession to the extent of 1 acre 8 cents. Hence, I do
not find any error committed by both the Courts since the
order of the appellate tribunal is very clear that to the
extent of 35 cents in terms of the sketch. Thus, I do not
find any grounds to invoke Section 100 of CPC to frame
the substantial question of law and to admit the appeal.
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RSA No. 1681 of 2019
11. In view of the discussions made above, I pass
the following:
ORDER
The appeal is dismissed.
Sd/-
JUDGE
SN
