Karnataka High Court
Shivappa S/O. Mugappa Amatiyar vs Pundalikappa S/O. Yamanappa on 9 January, 2024
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NC: 2024:KHC-D:447
RSA No. 5626 of 2013
IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH
DATED THIS THE 9TH DAY OF JANUARY, 2024
BEFORE
THE HON'BLE MR JUSTICE R.NATARAJ
REGULAR SECOND APPEAL NO.5626/2013(INJ)
BETWEEN:
SRI SHIVAPPA S/O. MUGAPPA AMATIYAR,
AGE: 48 YEARS, OCC: AGRICULTURE,
R/O: HEBBALLI, DHARWAD TALUK AND DIST - 580 006.
- APPELLANT
(BY SRI S. G. KADADAKATTI, ADVOCATE)
AND:
1. PUNDALIKAPPA S/O. YAMANAPPA
INGALI, AGE: MAJOR, OCC: AGRICULTURE,
R/O: HEBBALLI, DHARWAD TQ AND DIST - 580 006.
SRI YAMUNAPPA S/O. PUNDALIKAPPA
INGALI, SINCE DECEASED BY HIS LRS.
2. SMT. RATNAVVA W/O. YAMUNAPPA INGALI,
AGE: MAJOR, OCC.: HOUSEHOLD WORK,
R/O: HEBBALLI, DHARWAD TQ AND DIST - 580 006.
3. SHRI NAMADEVA S/O. YAMUNAPPA INGALI,
AGE: MAJOR, OCC.: AGRICULTURE,
Digitally R/O: HEBBALLI, DHARWAD TQ AND DIST - 580 006.
signed by
VINAYAKA - RESPONDENTS
BV
(BY SRI S.G.NANDOOR, ADVOCATE FOR
SRI S.B.DODDAGOUAR, ADVOCATE FOR R1 TO R3)
THIS REGULAR SECOND APPEAL IS FILED UNDER SECTION
100 OF C.P.C., AGAINST THE JUDGMENT AND DECREE DATED
13.11.2012 PASSED IN R.A.NO.61/2009 ON THE FILE OF THE III
ADDITIONAL SENIOR CIVIL JUDGE AT DHARWAD, DISMISSING THE
APPEAL FILED AGAINST THE JUDGMENT AND DECREE DATED
23.06.2009 AND THE DECREE PASSED IN O.S.NO.211/2006 ON THE
FILE OF THE I ADDITIONAL CIVIL JUDGE (JR.DN) AND JMC., AT
DHARWAD, DISMISSING THE SUIT FILED FOR PERMANENT
INJUCTION & ETC.
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NC: 2024:KHC-D:447
RSA No. 5626 of 2013
THIS APPEAL, COMING ON FOR ADMISSION, THIS DAY, THE
COURT DELIVERED THE FOLLOWING:
JUDGMENT
The appellant has filed this regular second appeal
challenging the concurrent finding of fact that he is in
possession of the suit schedule properties, by the trial court as
well as the first appellate court and therefore they are entitled
to the relief of perpetual injunction.
2. The appellant filed O.S. No. 211/2006 for the relief of
perpetual injunction in respect of the land bearing R.S. No.
114/1 of Hebballi village, Dharwad taluka measuring 10 acres
29 gunthas. The appellant claimed that the property was
granted in favour of his father on 20.06.1959 by the Assistant
Commissioner, Dharwad, based on the order of the Deputy
Commissioner, Dharwad dated 12.06.1959. The appellant
claimed that his brother and he were in possession of the suit
property from the date of its grant. He contended that his
father did not get his name entered in the record of rights and
taking advantage of it, the defendants got created a bogus
order of grant, sale deed and mutation in favour of defendant
no.1 and attempted to dispossess him from the suit schedule
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property. Therefore, the appellant sought for the relief of
perpetual injunction to protect his possession in the suit
schedule property.
3. The defendant no.1 contested the suit and claimed that
description of the suit property was not correct. He also denied
that the suit property was granted to the father of the plaintiff
in terms of an order dated 20.06.1959. He also denied that the
plaintiff was in possession of the suit property. He contended
that there was no grant in favour of the father of the plaintiff
and therefore there was no entry in the record of rights in
respect of the suit schedule property. He also claimed that
father of the plaintiff did not execute a Kabuliyath in favour of
the State Government. He contended that the suit property
was originally owned and possessed by Hanumanthappa and he
sold the Western portion of the property measuring 5 acres 7
guntas 8 guntas in R.S. No. 114/1 in terms of the sale deed
dated 26.10.1987 in favour of Pishappa Ingale. Similarly, the
remaining portion in R.S. No. 114/1 was purchased by the
father of defendant no.1 in terms of a sale deed dated
26.10.1987 in terms of a sale deed dated 26.10.1987. He
claimed that both purchasers were put in respective possession
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of the properties and from then they were in possession of the
suit property.
4. Based on these pleadings, the following issues were
framed.
1. Whether the plaintiff proves that he is in lawful
possession of the suit property as on the date of the
suit?
2. Whether the plaintiff proves that the defendants are
trying to dispossess the plaintiff from the suit property?
3. Whether the plaintiff is entitled for the relief of
permanent injunction as prayed?
4. What order or decree?
5. The plaintiff was examined as PW1 and he marked
Exs.p.1 to Ex.P.4. He also examined two witnesses as PW2 and
PW3. Defendant No.1 was examined as DW1 and he marked
Exs.D.1 to D.14 and a witness was examined as DW2.
6. Based on the oral and documentary evidence, the trial
court held that Hanumanthappa Shirur and his brother Yallappa
Shirur were jointly in possession of the entire extent of land
measuring 20 acres 30 guntas in survey No. 114 of Hebballi
village. It held that the Deputy Commissioner without
considering the claim of Hanumanthappa Shirur and his broher
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Yallappa Shirur held that they possessed saranjam lands
exceeding the ceiling limit of 48 acres and therefore rejected
the claim. Hanumanthappa Shirur challenged this order before
the Deputy Commissioner who directed the Additional Deputy
Commissioner, Dharwad to conduct an enquiry. Accordingly,
after an enquiry, the Additional Deputy Commissioner came to
the conclusion that Hanumanthappa Shirur and his brother
Yallappa Shirur were separately cultivating their respective
properties in Sy. No. 75 and Sy. No. 114 of Hebballi village and
that they partitioned the properties in the year 1942-43 and
therefore the land possessed by them did not exceed the ceiling
limit. Accordingly the Additional Deputy Commissioner
cancelled the earlier order of the Assistant Commissioner,
Dharwad granting Sy. No. 114 in favour of the father of the
plaintiff and consequently granted 10 acres 15 guntas each in
Sy. No. 114 in favour of Hanumanthappa Shirur and his brother
as per order dated 27.11.1963. The trial court held that
Hanumanthappa Shirur sold his 10 acres 15 guntas of land to
the father and uncle of the defendant no.1 in terms of the sale
deed at Exs.D.1 and D.2. It also held that the property
extracts at Exs.D.4 to D.8 established that it was the father of
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the defendant no.1 and his uncle were in possession of the suit
property. Therefore, it held that unless the plaintiff challenged
the order passed by the Additional Deputy Commissioner
canceling the grant made in favour of his father, he could not
maintain a suit for perpetual injunction on the basis of the
order of grant made in favour of his father. The trial court,
therefore dismissed the suit in terms of the judgment and
decree dated 23.06.2009. An appeal filed by the plaintiff in
R.A. No. 61/2009 was also dismissed. Feeling aggrieved by the
concurrent finding of fact of both the Courts, the plaintiff filed
this regular second appeal.
7. Learned counsel for the plaintiff contended that though
the order of grant of the suit property in favour of the father of
the plaintiff was cancelled, no steps were taken to recover back
possession of the property so granted. He therefore contends
that the suit for perpetual injunction was maintainable. He
contends that the trial court as well as the first appellate court
failed to consider this relevant fact and must have protected
the possession of the plaintiff until the defendant no.1
recovered it back in accordance with law.
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8. Per contra, learned counsel for the respondents contends
that the suit was filed not based on mere possession but was
based on title, namely, grant of land made in favour of father of
the plaintiff and therefore, it was incumbent upon the plaintiff
to prove his incidental title to the property. He contends that
the material placed before the trial court established that grant
made in favour of the plaintiff was cancelled and thereafter
land was granted to the predecessor in title of the father and
uncle of the defendant no.1. He contends that the revenue
documents also established that it was father of defendant no.1
and his brother who were in possession of the property and
therefore, the trial court as well as the first appellate court
were justified in dismissing the suit.
9. I have considered the submissions made by the learned
counsel for the plaintiff as well as the respondents.
10. The plaintiff claimed that his father was granted suit land
by the Assistant Commissioner, Dharwad, following the
directions issued by the Deputy Commissioner. The plaintiff
claimed that suit property was Saranjam lands which were
forfeited to the Government. However, the defendants claimed
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that the suit property was originally owned and possessed by
Hanumanthappa Shirur and his brother and that their claims in
respect of the suit property was rejected on the ground that
they were excess holders. It was only after forfeiture that the
land was granted to the father of plaintiff. Hanumanthappa
Shirur challenged this order before the Divisional Commissioner
who remitted the case back to the Additional Deputy
Commissioner to conduct an enquiry. The Additional Deputy
Commissioner after enquiry held that the land possessed by
Hanumanthappa Shirur was the Saranjam lands and was not in
excess of the ceiling limit and therefore he cancelled the grant
made in favour of the father of the plaintiff and granted it in
favour of Hnumanthappa Shirur and his brother Yallappa
Shirur. Hanumanthappa Shirur sold his portion of land to the
father of defendant no.1 and his uncle. Therefore, it is clear
that father of the plaintiff did not have any title to the suit
schedule property and therefore the plaintiff could not
contended that he was the owner in possession and occupation
of the suit schedule property. Except the title deed which was
placed on record, the plaintiff did not produce any other
material to establish that he was placed in possession of the
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suit schedule property pursuant to the order of grant and or
that he was in possession as on the date of the suit. On the
contrary, defendants placed on record Exs.D.4 to D.8 which
indicated that the defendants herein were in possession of the
suit property. In addition, PW.1 in his cross examination
admitted that suit property was originally belonged to
Hanumanthappa Shirur. Therefore, there was no justification
for the plaintiff to claim that he was in possession and
enjoyment of the suit property.
11. The trial Court has considered the aforesaid evidence in
an objective manner and has rightly dismissed the suit filed by
the plaintiff. The first appellate court also has perused the
records, framed points for consideration and after hearing the
parties has rightly dismissed the appeal.
12. As no substantial question of law arises for consideration
in this appeal, the same stands dismissed.
In view of disposal of the appeal, pending IAs, if any,
stand disposed off.
SD/-
JUDGE
CT-ASC
