Karnataka High Court
Smt. Appi vs Puttur Taluk The Tahsildar on 18 April, 2024
Author: M.G.S. Kamal
Bench: M.G.S. Kamal
-1-
NC: 2024:KHC:15340
RSA No. 419 of 2024
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 18TH DAY OF APRIL, 2024
BEFORE
THE HON'BLE MR JUSTICE M.G.S. KAMAL
REGULAR SECOND APPEAL NO. 419 OF 2024 (DEC/INJ)
BETWEEN:
1. SMT. APPI,
AGED ABOUT 48 YEARS,
W/O SANJEEVA SALIAN,
R/AT KALAI HOUSE,
MACHINA VILLAGE,
BELTHANGADY TALUK,
D K - 574 224.
2. SMT. BHAVANI
AGED ABOUT 32 YEARS,
D/O LATE SHIVAPPA POOJARY,
R/AT THOTA HOUSE,
PADNOOR VILLAGE,
Digitally
signed by PUTTUR TALUK,
SHAKAMBARI D K - 574 220.
Location: High
Court of
Karnataka 3. SMT. SUNDARI
AGED ABOUT 55 YEARS,
D/O LATE SHIVAPPA POOJARY,
R/AT THOTA HOUSE,
PADNOOR VILLAGE,
PUTTUR TALUK,
D K - 574 220.
4. MR RAMESH
AGED ABOUT 45 YEARS,
-2-
NC: 2024:KHC:15340
RSA No. 419 of 2024
S/O LATE BABU POOJARY,
R/AT KAPIKADU BONDALA HOUSE,
PANEMANGALURU VILLAGE,
BANTWAL TALUK, D K - 574 231.
...APPELLANTS
(BY SRI. KARUNAKARA P.,ADVOCATE)
AND:
1. PUTTUR TALUK
THE TAHASILDAR,
MINI VIDHANA SOUDHA,
PUTTUR, D K - 574 201.
2. GOVERNMENT OF KARNATAKA
REP. BY DEPUTY COMMISSIONER,
D.K, MANGALURU - 575 008.
...RESPONDENTS
THIS RSA IS FILED UNDER SEC.100 OF CPC., AGAINST THE
JUDGMENT AND DECREE DATED:06.02.2024 PASSED IN RA
NO.1/2021 ON THE FILE OF PRL. SENIOR CIVIL JUDGE AND JMFC,
PUTTUR TALUK, D.K., DISMISSING THE APPEAL AND CONFIRMING
THE JUDGMENT AND DECREE DATED 27.11.2020 PASSED IN OS
NO.95/2015 ON THE FILE OF ADDITIONAL CIVIL JUDGE AND JMFC,
PUTTUR, D.K.,
THIS APPEAL, COMING ON FOR ADMISSION, THIS DAY, THE
COURT DELIVERED THE FOLLOWING:
JUDGMENT
This appeal is filed by the plaintiffs aggrieved by the
judgment and decree dated 27.11.2020 passed in
O.S.No.95/2016 (Old O.S.No.199/2011) on the file of
Additional Civil Judge and J.M.F.C, Puttur (hereinafter 'the Trial
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Court') which is confirmed by the judgment and order dated
06.02.2024 passed in R.A.No.1/2021 on the file of Prl. Senior
Civil Judge and J.M.F.C, Puttur (hereinafter 'the First Appellate
Court').
2. The above suit in O.S.No.95/2016 is filed by the
plaintiffs claiming ownership in respect of lands bearing Sy.No.
6/3A4 measuring 0.20 acres, Sy. No. 8/5 measuring 0.46
acres, Sy. No. 6/3A3 measuring 0.32 acres, Sy. No. 8/2
measuring 0.58 acres, Sy. No. 6/3A6 measuring 0.90 acres and
Sy. No. 8/4 measuring 0.46 acres are situated in Padnoor
Village, Puttur Taluk, D.K.
2.1 The plaintiff No.1 claims to be the owner of the kadim
warg land, which is item No.1 and 2 of A schedule property,
plaintiff No.2 claims to be the owner of kadim warg land in the
item No.3 and 4 of 'A' schedule property and plaintiff No.3 also
claims to be the owner of kadim warg land in item No.5 and 6
of 'A' schedule property. It is contended that aforesaid lands
are kumki privilege abutting the Government land having 450
links from the plaint 'A' schedule property, adjacent to the
plaint B schedule properties. The RTC relating to 'A' schedule
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property stands in the name of plaintiffs and they are in
peaceful possession and enjoyment of the plaint 'A' and 'B'
schedule properties. The plaintiffs are entitled to enjoy kumki
privilege over the entire plaint 'B' schedule property without
any obstruction.
2.2. It is their further case that they have filed a suit in
O.S.No.163/2007 against one Janardhana Bhat and others.
That defendant No.1 who was aware about the said suit in
O.S.No. 163/2007. Despite the same defendant No.1 is
intending to grant some portions of plaint B schedule property
to said Janardhana Bhat. The defendant No.1 has no right over
the kumki privilege of the plaintiffs are interfering with the
peaceful possession of the kumki privilege of the plaintiffs until
the same is withdrawn. Hence, plaintiffs filed the suit.
3. Defendants appeared through Additional Government
Pleader filed their written statement contending that the suit is
not maintainable under law or on facts of the case. It is
contended that defendant No.1 has initiated the proceedings for
reservation of the properties bearing Sy.No.9/P2 measuring 19
cents and Sy.No.146/1P2 measuring 40 cents of Padnoor
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Village, Puttur Taluk, for the purpose of Daivasthan as per the
request of the villagers of Padnoor Village. That when the
survey was conducted in that it was found proposed properties
sought for the reservation of the Daivasthan was beyond the
kumki land of the plaintiffs. That the defendant has no intention
to grant any portion of kumki properties belonging to said
Janardhana Bhat. The subject property is reserved for the
Daivasthana which is the absolute property of the State
Government. Hence, sought for dismissal of the suit.
4. Based on the pleadings, the Trial Court framed the
following issues for its consideration:
"(i) Whether the plaintiffs prove that the B schedule
property forms kumki to the A schedule property?
(ii) Whether the plaintiffs prove that they are in
possession and enjoyment of the suit.
(iii) Whether the plaintiffs prove the defendants
interference as pleaded in the plaint?
(iv) Whether the plaintiffs are entitled for the
relief's as claimed in the plaint?
(v) What order or decree?''
5. One G.P.A. holder of plaintiff No.3 examined herself as
PW.1, one additional witness by name Smt.Bharathi has been
examined in favour of plaintiffs examined as PW.2 plaintiff
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Nos.1 and 2 have examined themselves as PW.3 and PW.4 and
exhibited 36 documents marked as Ex.P1 to Ex.P36. In order to
prove their defence, defendant No.1 examined himself as DW1.
and exhibited one document marked as Ex.D1. On appreciation
of the evidence the Trial Court answered issue Nos.1 to 4 in the
negative and consequently dismissed the suit as prayed for.
6. Being aggrieved by the aforesaid judgment and decree
defendant filed an appeal in R.A.No.1/2021 before the First
Appellate Court. Considering the grounds urged the First
Appellate Court framed the following points for its
consideration:
"1. Whether the Trial Court has not considered the
evidence placed on record in a proper perspective
and the judgment of the trial Court suffers from
infirmities?
2. Whether the Trial Court erred in dismissing the
suit?
3. Whether grounds are made out to decree the suit
and grant the relief of declaration and injunction as
claimed in the suit?
4. Whether the appeal deserves to be allowed ?
5. What Order?"
7. On re-appreciation of the evidences, the First Appellate
Court answered point Nos.1 to 4 in the negative and
consequently dismissed the appeal confirming the judgment
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and decree passed by the Trial Court. Being aggrieved by the
same defendant/appellant is before this Court.
8. Sri.Karunakara.P, learned counsel for the appellant
reiterating the grounds urged in the memorandum of the
appeal submitted that the suit is one for declaration and
injunction based on plaintiffs right over the kumki lands. He
submits that the plaintiffs have filed Form No.53 as provided
under the Karnataka Land Revenue Act, 1964 seeking grant of
the said land and same is pending consideration. He further
submits that plaintiffs were constrained to file the suit
inasmuch as defendant-authorities were making hectic efforts
to grant the said land in favour of the third parties depriving
the plaintiffs legitimate entitlement over the 'B' schedule
property which is a kumki land. Thus, he submits that the Trial
Court and the First Appellate Court have grossly erred in
declining the relief of declaration and permanent injunction as
sought for by the plaintiffs giving raise to substantial question
of law to be answered at the hands of this Court.
9. Heard. Perused the records.
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10. The very premise on which the plaintiffs seeking their
right is in the nature of declaration that the 'B' schedule
property is a kumki land attached to the 'A' schedule property
and the plaintiffs having privilege right over the same and
thereby injunct the respondents from interfering with the
possession of same. The Trial Court and the First Appellate
Court on appreciation of the evidence has found that the
plaintiffs have failed to prove that the 'B' schedule property
forms kumki to the warg property described in their plaint 'A'
schedule property and that the plaintiffs have failed to prove
their possession over the 'B' schedule property.
11. Further, kumki rights are a concession granted by the
State subject to special orders passed under the provisions of
the Karnataka Land Revenue Act, 1964. Such relief cannot be
granted by way of declaration as the same falls within the
domain of the Karnataka Land Revenue Act, 1964.
Classification of the nature of land cannot be a matter of
consideration by the Civil Court as the same has to be done in
the manner known to law by the Revenue Authorities. Further
even as submitted by learned counsel for the plaintiffs the very
application of the plaintiffs is admittedly pending consideration
NC: 2024:KHC:15340
before the Revenue Authorities. Same cannot be made a
subject matter of the suit as sought to be done in the present
appeal. The Trial Court and the First Appellate Court on
appreciation of the evidence has come to the just and proper
conclusion which cannot be found fault with.
12. No substantial question of law would arise for
consideration in this appeal. Accordingly, this appeal is
dismissed confirming the judgment and decree passed by the
Trial Court and the First Appellate Court.
13. It is made clear that the rights, entitlement of the
plaintiffs/appellants if any for the relevant points of law be
considered without being influenced with the dismissal of the
appeal.
Sd/-
JUDGE
RL
