Karnataka High Court
Saibanna S/O Kalappa Kerolli vs Legal Representatives Of The Deceased on 2 April, 2024
Author: Rajendra Badamikar
Bench: Rajendra Badamikar
1
IN THE HIGH COURT OF KARNATAKA,
KALABURAGI BENCH
DATED THIS THE 2ND DAY OF APRIL, 2024
BEFORE
THE HON'BLE MR JUSTICE RAJENDRA BADAMIKAR
RSA No.7148 OF 2010
BETWEEN:
SAIBANNA S/O KALAPA KEROLLI
AGE- 67 YRS., OCC- AGRI.,
R/O CHANDAPUR, TQ: CHINCHOLI,
DIST: GULBARGA-4585305.
SINCE DECEASED BY HIS LRs:
1. MALKAMMA W/O SAIBANNA,
AGE-66 YEARS,
R/O H.O. 2-4-345, HARIJAN VADA,
CHINCHOLI, TQ- CHINCHOLI,
DIST- KALABURAGI.
2. SUBHASH S/O BISALAPPA,
AGE-31 YRS., OCC- AGRI.,
R/O H.NO. 2-4-345,
SUNDAR NAGAR, CHINCHOLI,
TQ-CHINCHOLI,
DIST- KALABURAGI.
3. GOUTAMMA S/O BISALAPPA,
AGE- 27 YRS., OCC- AGRI.,
R/O H.NO. 2-4-345,
SUNDAR NAGAR, CHINCHOLI,
TQ-CHINCHOLI, DIST- KALABURAGI.
4. MARUTI S/O BISALAPPA,
AGE- 24 YRS., OCC- AGRI.,
R/O SUNDAR NAGAR, CHINCHOLI,
TQ- CHINCHOLI, DIST- KALABURAGI.
5. BASAPPA S/O SAIBANNA,
AGE- 52YRS., OCC- AGRI.,
R/O H NO. 2-4-333, SUNDAR NAGAR,
CHINCHOLI, TQ- CHINCHOLI,
DIST- KALABURAGI
SINCE DECEASED BY HIS LRs:
2
A. HONNAMMA W/O BASAPPA,
AGE-57 YRS., OCC- AGRI.,
B. NANDAPPA S/O BASAPPA,
AGE-35 YRS., OCC- AGRI.,
BOTH R/O H.NO. 2-4-333,
SUNDAR NAGAR, CHINCHOLI,
TQ- CHINCHOLI, DIST- KALABURAGI
AMENDED AS PER COURT
ORDER DATED 22.12.2021
6. SHAMANNA S/O SAIBANNA,
AGE-46 YRS., OCC- AGRI.,
R/O H NO. 2-4-333/16,
SUNDAR NAGAR, CHINCHOLI,
TQ- CHINCHOLI, DIST- KALABURAGI,
SINCE DECEASED BY HIS L.RS
A. CHITRAMMA W/O SHAMANNA,
AGE-45 YRS., OCC-HOUSEHOLD
B. ULLAS S/O SHAMANNA,
AGE-25 YRS., OCC- AGRI.,
C. MAHESH S/O SHAMANNA,
AGE-21 YRS., OCC-AGRI
ALL R/O H.NO. 2-4-333/16,
SUNDAR NAGA CHINCHOLI,
TQ- CHINCHOLI, DIST- KALABURAGI
AMENDED AS PER COURT
ORDER DATED 17.11.2023
7. SHARANAMMA W/O BAKAPPA,
AGE-26 YRS., OCC- AGRI.,
R/O H NO. 4-333-15,
SUNDAR NAGAR, CHINCHOLI,
TQ- CHINCHOLI, DIST- KALABURAGI.
...APPELLANTS
(BY SRI. B.D. HANGARKI, ADVOCATE)
3
AND:
1. LEGAL REPRESENTATIVES OF
THE DECEASED MEERAN PATEL
S/O SULEMAN PATEL,
R/O CHANDAPUR,
TQ: CHINCHOLI DIST: GULBARGA.
A. MEHABOOB PATEL
S/O MEERAN PATEL,
AGE: 52 YRS, OCC:AGRIL.,
B. RAFEEQ PATEL
S/O MEERAN PATEL,
AGE: 50 YRS, OCC:AGRIL.,
SINCE DECEASED BY HIS LRs.:
1. HAJI PATEL
S/O RAFEEQ PATEL,
AGE-32 YRS., OCC-AGRI.,
R/O PATEL COLONY,
NEAR JUNIOR COLLEGE,
CHANDAPUR-585307,
TQ-CHINCHOLI,
DIST- KALABURAGI.
2. AZRA BEGUM,
W/O MOHD. MINAJ PATEL,
D/O RAFEEQ PATEL, AGE-38 YRS.,
ОСC-HOUSEHOLD,
R/O 111/2 MADIEENA COLONY,
CHANDAPUR, TQ- CHINCHOLI,
DIST- KALABURAGI-585 305.
3. BUSHRA BEGUM,
W/O MOHD. IMRANUDDIN,
D/O RAFEEQ PATEL, AGE-37 YRS.,
OCC-HOUSEHOLD, R/O GBN GUNJ,
KALABURAGI DIST-KALABURAG-585104
4. AYESHA SULTANA
W/O AYAS D/O RAFEEQ PATEL,
AGE-33 YRS., OCC-HOUSEHOLD,
4
R/O INDIRA NAGAR WADI,
KALABURAGI-585 225.
5. AMENA BEGUM,
W/O SAYED AZMALULLA HUSSAINI,
D/O RAFEEQ PAEL, AGE-30 YRS.,
OCC- HOUSEHOLD,
R/O H NO. 5-566, DARGA ROAD,
GUNJ, KALABURAGI-585 104.
6. SALURA BEGUM W/O SYED YAQOOB,
D/O RAFEEQ PATEL, AGE-33 YRS.,
OCC- HOUSEHOLD, R/O INDIRA NAGAR,
WADI, KALABURAGI-585 225.
C. SHEERAJ PATEL S/O
MEERAN PATEL, AGE: 40 YRS, OCC:AGRIL.,
SINCE DECEASED BY HIS L.RS
I. SULEMAN PATEL,
S/O SHEERAJ PATEL,
AGE-35 YRS., OCC-AGRI.,
R/O PATEL COLONY,
NEAR JUNIOR COLLEGE,
CHANDAPUR-585307,
TQ- CHINCHOLI,
DIST- KALABURAGI.
II. PASHA BEGUM,
W/O SHEERAJ PATEL,
AGE- 58 YRS., OCC-HOUSEHOLD,
R/O NEAR MADIEENA MASJID,
CHANDAPUR TQ- CHINCHOLI,
DIST- KALABURAGI.
III. SAFIYA BEGUM,
D/O SHEERAJ PATEL,
W/O ZAHEER KHAN,
AGE-39 YRS., OCC- HOUSEHOLD,
R/O NO. 19-5-32/A/42,
ASAD BABA NAGAR,
VIDYA BHARATHI SCHOOL
KISHAAN BAGAH BAHADURPUR,
HYDERABAD-500 064.
5
IV. FARHEEN BEGUM,
D/O SHEERAJ PATEL,
W/O SULEMAN PATEL,
AGE-31 YRS., OCC- HOUSEHOLD
R/O NO. 438 CHANDAPUR,
TQ- CHINCHOLI,
DIST-KALABURAGI-585 305.
V. ATIYA BEGUM,
D/O SHEERAJ PATEL,
W/O MOHD. SHAREEF,
AGE-28 YRS., OCC- HOUSEHOLD,
R/O MADINA COLONY, CHANDAPUR,
TQ- CHINCHOLI, DIST- KALABURAGI
AMENDED AS PER COURT
ORDER DATED 23.2.2023
D. SATTAR PATEL,
S/O MEERAN PATEL,
AGE: 38 YRS, OCC:AGRIL.,
E. FAYAZ PATEL S/O MEERAN PATEL,
AGE: 36 YRS, OCC:AGRIL.,
SINCE DECEASED BY HIS L.RS
I. ZAKEERA BEGUM,
W/O FAYAZ PATEL, AGE-58 YRS.,
OCC- HOUSEHOLD,
II. MD. NOMAN PATEL,
S/O FAYAZ PATEL, AGE-38 YRS.,
OCC- AGRI.,
III. MD. HASAN PATEL S/O FAYAZ PATEL,
AGE-34 YRS., OCC- AGRI.,
IV. MD.LUKMAN PATEL S/O FAYAZ PATEL,
AGE-31 YRS., OCC- AGRI.,
ALL R/O PATEL COLONY,
NEAR JUNIOR COLLEGE,
CHANDAPUR-585 307,
TQ- CHINCHOLI, DIST- KALABURAGI.
6
V. ASIYA BEHUM,
D/O MOHD. FAIYAZ PATEL,
AGE-31 YRS., OCC- HOUSEHOLD,
R/O 574/2, HEDDALAPPA STREET,
BASAVANA KATTE, ATTIBELE,
BENGALURU-562 107
ALL R/O CHANDAPUR TQ:
CHINCHOLI DIST : GULBARGA-585 305.
2. PRINCIPAL,
GOVT. JUNIOR COLLEGE,
CHANDAPUR TQ: CHINCHOLI,
DIST: GULBARGA-585 305.
3. THE RANGE FOREST OFFICER,
CHANDAPUR, TQ: CHINCHOLI,
DIST: GULBARGA585 305.
...RESPONDENTS
(BY SRI. MANVENDRA REDDY, ADVOCATE FOR
R1(A) & R1(D), R1(B) (I) TO R1(B)(VI), R1(C), (I) TO
R1(C)(V) & R1(E)(I) TO R1(E)(V),
SMT. ARATI PATIL, HCGP FOR R2 & R3)
THIS RSA IS FILED U/S. 100 OF CPC AGAINST THE
JUDGMENT & DECREE DATED 22.12.2009 IN
R.A.NO.03/2008 PASSED BY THE CIVIL JUDGE COURT (S.D.)
CHINCHOLI CONFIRMING THE JUDGMENT AND DECREE
DATED 05.12.2007 IN OS.NO.220/90 ON THE FILE OF THE
CIVIL JUDGE COURT(J.D.), CHINCHOLI AND ETC.
THIS APPEAL HAVING BEEN HEARD AND RESERVED
FOR JUDGMENT ON 14.03.2024, COMING ON FOR
'PRONOUNCEMENT OF JUDGMENT' THIS DAY, THE COURT
DELIVERED THE FOLLOWING:
7
JUDGMENT
This Regular Second Appeal is filed by the plaintiff
under Section 100 of CPC challenging the judgment &
decree passed by the learned Civil Judge (JR. DN.) &
JMFC, Chincholi, in OS No.220/1990 and RA No.3/2008
dated 22.12.2009, on the file of the learned Senior Civil
Judge, Chincholi, whereby the suit filed by the plaintiff
for declaration and possession came to be dismissed.
2. The brief factual matrix leading to the case
are as under:
The plaintiff has filed this suit for relief of
declaration to the effect that he is the owner of the suit
property and for possession o f the suit property, as well
as injunction against the defendants. The suit property
is land bearing Sy.No.14 measuring 1 acre 24 guntas of
Chandapur village of Chincholi Taluka, with specific
boundaries mentioned there under. It is the contention
of the plaintiff that house of the defendant No.1 is
situated to the east of the suit land and defendant Nos.2
& 3 are Government servants and that he is cultivating
the suit land since 25 to 30 years on half crop share
basis and he filed form No.7 before the Land Tribunal
for grant of occupancy rights and occupancy rights were
granted in his favour. Hence, he claims to be the owner
in possession of the suit land. It is alleged that prior to
the order of the Land Tribunal and even after the order,
he used the said suit land for grazing cattle and he filed
an application to the Taluka Surveyor for measurement
of the suit land and the suit land came to be measured
in the presence of the panchas, wherein it is revealed
that defendant No.2 has encroached 31 guntas of the
suit land and defendant No.3 has encroached 19 guntas
of the suit land while defendant No.1 has encroached 18
guntas of the suit land. It is alleged that after the
survey, the surveyor has fixed the boundary stones,
asking him to be in possession of the said area and he
continued to be in possession. He alleges that he was in
possession of the suit land till conducting the survey
and even in the first week of October 2019. Thereafter,
on 30.10.1990, the defendants removed the boundary
stones fixed by the surveyor and attempted to raise the
compound wall by encroaching the suit land and hence,
he claims to have filed the suit.
3. Defendant No.1 filed the written statement
admitting that he is residing in the house situated
towards east of the suit land, but he denied the rest of
the allegations made by the plaintiff that he was
cultivating the suit land on half crop share basis and
occupancy rights were granted in his favour. He denied
the title and possession of the plaintiff over the suit land
and he also denied the survey being conducted and rest
of the allegations made in the plaint.
4. It is contended that there is no land to the
eastern side of Chincholi-Tandur road in front of
Government Junior College and forest office and the
junior college and forest offices are extended upto
Tandur-Chincholi road. He has also set up the defence
regarding perfection of his title over the suit schedule
property by way of adverse possession and sought for
dismissal of the appeal.
5. Defendant No.2 is the principal of the
Government Junior College and he has also filed a
separate written statement, which was adopted by
defendant Nos.3, by disputing the claim. It is contended
that description of the suit schedule property itself is
improper and 15 guntas of Sy.No.14 was gifted to
Government Junior College by the land owner
Krishnacharya long back and the Government Junior
College is situated by the side of range forest office and
the area of both the Government Junior College and
range forest office extends upto Tandur-Chincholi road.
It is asserted the Sy.No.14 itself was acquired by
Government in 1960 and compensation was paid to the
original owner.
6. It is alleged that the premises of defendant
Nos.2 & 3 are touching Tandur-Chincholi road towards
west and disputed the visit of surveyor and alleged
encroachment. They also denied the attempting to raise
the compound wall etc., and it is asserted that when the
land was acquired, question of plaintiff claiming title
does not arise at all. Hence, the defendants have sought
for dismissal of the suit.
7. On the basis of these pleadings the trial court
has framed the following 13 issues:
"1. Whether the plaintiff proves that he is the owner of
the suit land as described in para 2 of the plaint?
2. Whether the plaintiff proves that he is entitled to
perpetual injunction against the defendant?
3. Whether the plaintiff proves that he is entitled to get
the possession of the suit land as described in para 2
of the plaint?
4. Whether the plaintiff proves that the cause of action
to the suit?
5. Whether the plaintiff proves that he is entitled for
cost of the suit?
6. Whether the defendant No.2 proves that suit of the
plaintiff is no maintainable?
7. Whether the defendant No.2 proves that in land
Sy.No.14. to the extent of 15 guntas has been gifted
to the Government by the previous land owner by
name Krishnacharya?
8. Whether the defendant No.2 proves that the land
had been acquired by Government by paying
compensation and way of gift long back from the
previous land owner?
9. Whether the defendant No.2 proves that suit of the
plaintiff is not property valued?
10. Whether the defendant No.1 proves that he is in
possession of the suit land more than statutory period,
hence he has perfected his title over the suit land as
per para 7 of the written statement?
11. Whether the defendant No.1 proves that he is
entitled to get compensatory cost of Rs.2000/- from
the plaintiff?
12. Whether the defendant No.1 proves that suit of the
plaintiff is not maintainable as it is barred by law of
limitation?
13. What order or decree?"
8. The plaintiff was examined as PW1 and two
witnesses were examined on his behalf as PW2 & PW3
and he placed reliance on 25 documents marked at
Ex.P1 to Ex.P25. Defendant No.1 was examined as DW1
and three witnesses were examined on his behalf as
DW2 to DW4 and the defendant No.2 was examined as
DW5. They placed reliance on Ex.D1 to Ex.D5.
9. After hearing the arguments and after
appreciating the oral and documentary evidence, the
learned Civil Judge answered issue Nos.1 to 5 in the
negative and issue nos.6, 9 and 11 were answered in
the affirmative, while issue No.7, 8, 10 and 12 are
answered partly in the affirmative and ultimately
dismissed the suit.
10. Being aggrieved by this judgment and decree
passed by the learned Junior Civil Judge in OS
No.220/1999, the plaintiff has approached the learned
Senior Civil Judge at Chincholi in RA.No.3/2008. The
learned Senior Civil Judge after re-appreciating the oral
as well as documentary evidence, has dismissed the
appeal by confirming the judgment and decree passed
by the trial Court.
11. Being aggrieved by these concurrent findings,
the plaintiff is before this Court by way of this second
appeal.
12. The main contention of the learned counsel
for plaintiff is that Ex.P6 is the grant certificate issued to
the plaintiff and plaintiff was declared as a tenant. He
would contend that RS No.15 belongs to defendant No.1
which is acquired by the State towards eastern side and
defendant Nos.2 & 3 along with defendant No.1
removed the boundary stones. It is contended that
existence of suit property is not in dispute when Ex.P6
clearly establishes the grant of occupancy rights and
both the courts below fail to appreciate Ex.P6 in proper
perspective. Further, he has also filed IA 5 under Order
VI Rule 17 of CPC for amendment of the plaint
regarding suit schedule by restricting it to 1 acre 11
guntas excluding 15 guntas of acquired land and 2
guntas of phod kharab land.
13. Per contra, the learned Government Pleader
would contend that, as per Ex.P6, 1 acre 26 guntas is
granted, while claim is made in respect of 1 acre 28
guntas and plaintiff's pleading itself discloses that he
was not in possessions of the suit schedule property
since long time. She would also assert that the plaint
pleadings and evidence of the parties disclose that the
main road passes through Sy.No.14 and what is the
extent acquired in this survey number for said road is
not at all disclosed and the evidence discloses that the
suit land was never cultivated and property of
defendants 2 & 3 is extended upto the main road. She
would also contend that portion of Sy.No.14 was
acquired long back by issuing a notification and in this
regard she has filed application under Order XLI Rule 27
to produce the final notification. It is further submitted
that since defendant Nos.2 & 3 are being sued as a
public servants, Government ought to have been
impleaded as a necessary party but that was not done
and without impleading the Government as a necessary
party, the suit cannot be continued. She has also
disputed the amendment contending that it will change
the entire nature of the property and the boundaries
and evidence needs to be again recorded and after
lapse of nearly 34 years this amendment application is
filed without any proper reasons being quoted and
hence, she seeks for dismissal of the suit as well as IA5.
14. On 10.11.2010, while admitting this appeal,
this Court has framed the following substantial question
of law:
"Whether the lower Appellate Court & trial Court
justified in dismissing the suit instituted by the
appellant herein by the impugned judgment and
decree?"
15. Admittedly, the plaintiff filed a suit for
declaration of his title and for recovery of possession as
well as for perpetual injunction. When the plaintiff is
seeking possession, question of he seeking temporary
injunction against the defendants does not arise at all.
The injunction can be granted in favour of a person
who is in lawful possession as on the date of institution
of the suit and allegation of the plaintiff itself discloses
that, as on the date of the suit, the plaintiff was not in
possession and hence he is seeking possession of the
suit property.
16. The simple allegations made by the plaintiff
is that, the defendant Nos. 1 to 3 have removed the
boundary stones fixed by the surveyor to the suit land
on 30.10.1990. But, his further pleadings disclose that,
he got measured the suit land through the surveyor,
who has reported that there was an encroachment by
defendants almost to the whole extent of the land. His
simple assertion is that, after measurement the
surveyor fixed the boundary and asked him to be in
possession. When the plaintiff asserts that there is an
encroachment, then it was his duty to obtain possession
by process known to law and it is not his case that the
defendants have voluntarily removed encroachment.
Hence, the contention of the plaintiff is inconsistent as
at one breath he claims that, defendants have
encroached and at another breath, he claims that he is
in possession, and hence, he himself is not certain of his
own case.
are sued in the official capacity as they are the Principal
of a Government Junior College and Range Forest
Officer of Chincholi. Hence, they are public servants.
The plaintiff has also filed an application for
dispensation of notice under Section 80 of CPC, which
was allowed by the trial Court. However, the Order 27
of CPC deals with suits by or against the Government or
Public Officers in their official capacity. Admittedly, the
suit is filed against defendant Nos. 2 and 3 in their
official capacity. Order 27 Rule 5(A) of CPC, reads as
under:-
"Order 27 Rule 5A -Government to be
joined as a party in a suit against a public
officer. - Where a suit is instituted against a
public officer for damages or other relief in
respect of any act alleged to have been done
by him in his official capacity, the Government
shall be joined as a party to the suit."
18. The said provision mandates that, when a
suit is instituted against a public officer, the Government
shall be joined as a party to the suit. Admittedly, the
defendant Nos. 2 & 3 are the public servants and they
had no personal interest and they are sued in the
capacity of public officers. However, the Government
was not impleaded as a necessary party.
19. Section 79 of CPC mandates that the State
should be a party. But in the instant case, though the
suit is filed against the public officers in respect of the
act done by them in their official capacity, the State was
not impleaded as a necessary party. This was
specifically observed by the Appellate Court and a
finding was given in this regard by the Appellate Court
at Point No.1. In spite of that, the plaintiff did not
bother to implead the State as a necessary party nor
sought leave of the Court to implead the State in the
appeal.
20. The suit is for declaration and possession.
The measurement of the suit property is shown to be
the land bearing Sy. No.14 measuring 1 acre 28 guntas
of Chandapur Village, Chincholi Taluk. The plaintiff is
claiming title on the basis of the order of the Land
Tribunal, which is said to have granted land in favour of
the plaintiff. But, on perusal of the property extract
produced at Exs. P14 to P18, it is evident that there is
two guntas of phod karab land and the property
measuring only 1 acre 26 guntas is available. But the
Land Tribunal is said to have granted the entire land.
The entire claim of the plaintiff is based on ground that,
by virtue of grant of occupancy rights by the Land
Tribunal, he was cultivating the suit land. But the
evidence of PW.1 itself discloses that, he does not know
as to who was the owner of the suit land. If he is
unable to know who is the owner of the suit land, then
question would arise as to on whose behalf he was
cultivating the land, so as to claim occupancy rights.
The entire claim of the plaintiff is based on Ex.P6-
Occupancy Certificate.
21. The evidence of PWs.1 to 3 clearly discloses
that Tandur-Chincholi road is existing since long time
and it is a main road. It is also admitted that the said
road is passing through Sy.No.14. The plaintiff has not
disclosed the measurement of the said road, which
passed through the said land. Admittedly, Tandur-
Chinholi Road is a Highway. The evidence of DW.1 to
DW.4 discloses that the said road was in existence prior
to their birth and this statement was not denied. Even
PW.2 has admitted that the said road is in existence
since the time of his birth and as on the date of he
giving evidence, his age itself was 60 years. Even PW.3
has admitted the said aspect and hence, it is evident
that the Tandur-Chincholi road is in existence since last
more than 50 - 60 years prior to filing of the suit. Even
PW.1 has admitted that the Tandur-Chincholi road is
situated in Sy. No.14. In that event, he is required to
explain as to which area was acquired for the said road
and the Land Tribunal has not even bothered to consider
this aspect. Even the plaintiff in his examination has
also reiterated this aspect that the Tandur-Chincholi
road is situated in Sy. No.14. Hence, it is evident that
the Sy. No.14 is not measuring 1 are 28 guntas as
asserted by the plaintiff. The evidence of PW.1 discloses
that he was unaware of the exact extent of the suit
land.
22. Further, it is the contention of the plaintiff
that, based on the report of the surveyor that defendant
No.2 has encroached 31 guntas, Defendant No.3
encroached 19 guntas, while defendant No.1 has
encroached 18 guntas of land. If this version is taken
into consideration, then the entire land is encroached
and in that event, the plaintiff is required to say as to
when the encroachment has taken place. Though the
report of the surveyor is relied on, but, it does not bear
the date and hence, the report of the Surveyor does not
have any relevancy. Further, the surveyor was also not
examined and there is no evidence that prior to survey,
a notice was issued to the neighbouring land owners.
23. The Land Tribunal is said to have granted
occupancy rights in favour of the plaintiff on the ground
that he had been cultivating the suit land. But,
however, the assertions made by the plaintiff disclose
that, he never claimed to have cultivated the suit land,
but his contention is that he was using it for grazing his
cattle and subsequent pleading is that, he was getting it
cultivated on half crop share basis, but there is no
evidence to show from whom he got the land cultivated.
The assertion of the plaintiff discloses that, as on the
date of order of the Land Tribunal, the land in the said
survey number was a fallow land and if it is a fallow
land, question of the Land Tribunal granting occupancy
rights on the ground of cultivation by the plaintiff does
not arise at all.
24. Apart from that, the plaintiff in his cross-
examination clearly admitted that the School of
Defendant No.2 and office of Defendant no.3 were in
existence since more than 40 years back. He has also
admitted that the School is using the said land as play
ground extending upto main road and even this is the
admission given by PW.2 as well as PW.3. If this
admission is taken into consideration, it is evident that
the school of Defendant No.2 and office of Defendant
No.3 are in existence since more than 40 years and on
the eastern side of Tandur-Chincholi road, Government
School is situated and in between the said area was
never cultivated by anybody. However, it is the
contention of the plaintiff that he was cultivating the
said land, but his own admission states that the said
land was never cultivated. PW.2 specifically asserted
that, from the date of he getting knowledge, the open
space situated on the eastern side of the road was not
at all cultivated by anybody. The boundaries given in
the plaint itself discloses that the western side of the
said property is Tandur-Chincholi road and the
admission of CW.2 discloses that, on Eastern side of
Tandur land, the land was never cultivated and all along
the said land was being used as play ground by
Defendant No.2. Even similar admissions are found in
the cross-examination of PW.3 also and he has gone to
the extent of admitting that the open space situated on
the eastern side of the road is the property belonging to
college and forest office, and they were not cultivable
lands. Hence, it is evident that the contention of the
plaintiff that he was cultivating the said land at any
point of time, cannot be accepted at any stretch of
imagination.
25. The plaintiff has now filed IA No.5 under
Order 6 Rule 17 of CPC seeking amendment and by
seeking amendment, he intends to restrict the suit
property to the extent of 1 acre 12 guntas alone. It is
further asserted that, in the application itself, the
plaintiff admitted acquisition of 15 guntas of land in Sy.
No.14 and this acquisition has taken place long back
and in this regard, IA No.3 is filed by Defendant Nos. 2
& 3 seeking production of notification. The contention of
the plaintiff now seeking relief itself discloses that the
portion of land is acquired and this fact is not disputed
by the plaintiff. The notification is also produced along
with IA No.3/24 filed by Defendant Nos. 2 & 3 under
Order 41 Rule 27 of CPC, which discloses that, the land
of 15 guntas was acquired in Sy. No.14 and it is also
evident that, the said acquisition was in the year 1965
itself and it is admitted that the owners have already
received compensation. In that event, the plaintiff
ought to have pleaded this acquisition and he should
have restricted his claim to the remaining portion. But,
the way he is prosecuting the suit clearly discloses that,
he does not have any knowledge of extent of the suit
land itself. The records also disclose that, he was not in
possession of the suit land and even if now the
amendment is sought, it cannot be allowed in view of
the admissions given by the plaintiff and his witnesses
that the said land was never been cultivated. Apart
from this, when the acquisition was in the year 1965
itself, question of the Land Tribunal granting occupancy
rights pertaining to this land to the extent of 1 acre 28
guntas in favour of the plaintiff does not arise at all.
15 guntas of land is acquired and admittedly the main
road is situated in Sy. No.14 and certain area was also
acquired in this land for said road also. Hence, the
amendment now sought, does not have any relevancy
and it is evident that the plaintiff is taking his chances.
Apart from that, it is also evident that the Land tribunal
has not even applied its mind to this aspect and though
initially the matter was remanded by the High Court for
reconsideration, but in a mechanical way, without
ascertaining exact land available for cultivation, the
Land Tribunal has mechanically granted the occupancy
rights in favour of the plaintiff. Even the plaintiff is not
having any knowledge as to who is the actual owner and
the records disclose that the actual owner has already
received the compensation. By filing amendment
application, the plaintiff has admitted this aspect and his
conduct discloses that, he has not approached the Court
with clean hands. He is taking inconsistent stands of
cultivation at one breath and using the suit land for
grazing cattle at another breath. Though he also
asserted that, he got the land cultivated on half crop
share basis, but he did not disclose as to who was
cultivating on his behalf and he has not even examined
the said witness. Hence, it is evident that the order of
the Land Tribunal itself is without any jurisdiction, as at
that time, land acquired vests with the State
Government and as such, question of granting
occupancy rights in favour of the plaintiff does not arise
at all. The original owner of Sy. No.14 was one Sri.
Krishnacharya, son of Govindacharya and occupancy
rights were said to have granted in 1988, but
acquisition itself was in 1960. Hence, question of the
plaintiff cultivating land in 1988 does not have any
relevance. The cross-examination of PWs. 1 to 3 clearly
exposed the claim of the plaintiff and his intention is to
grab some portion of the property and to encash it by
converting it into non-agricultural land. He never
cultivated the suit land and his possession itself is not
established. Even the suit is hit by law of limitation.
Apart from that, as observed above, the plaintiff has not
impleaded the State, who shall be the necessary party
under Order 27 Rule 5A of CPC. Hence, without
impleading the State, he cannot continue the
prosecution as against public servants. This is a
defective suit and the plaintiff has not got rectified this
defect also.
26. Looking to the above facts and
circumstances, it is evident that both the Courts below
have appreciated the oral and documentary evidence in
proper perspective and analyzed the same in detail. No
illegality or perversity is found in the judgment and
decree passed by both the Courts below. As such,
question of interference in the impugned judgment and
decree, does not arise at all. Apart from that, in view of
admissions and now an amendment being sought by
filing an application, that itself establish that a portion
of the suit land was already acquired. Hence, IA
No.3/2024 needs to be allowed, which is admitted by
the plaintiff himself by filing IA No.5/2024 for
amendment. However, in view of the admissions given
by the plaintiff, even if the plaint is amended, it will not
help the plaintiff in any way, as he failed to prove his
possession over the suit property and he is taking
inconsistent stands of cultivation, grazing and
subsequent encroachment. The plaintiff himself is not
certain about his own case and he wanted to have
unlawful gain regarding the order passed by the Land
Tribunal without any jurisdiction and hence, the order of
the Land Tribunal itself does not survive for
consideration.
27. Considering the above facts and
circumstances, IA No.3/2024 needs to be allowed and
IA No.5/2024 needs to be dismissed as it does not
survive for consideration, as it will not help the plaintiff
in any way, even by allowing the amendment
application. Accordingly, the substantial question of law
framed by this Court is answered in the affirmative and
the appeal needs to be dismissed. Hence, I proceed to
pass the following:
ORDER
The appeal is dismissed. Under the
circumstances, parties are directed to bear their own
costs in this appeal.
Consequently, IA No.3/2024 stands allowed, while
IA No.5/2024 stands dismissed.
Sd/-
JUDGE
DS/KGR
