Karnataka High Court
Sri. Ankaiah vs The Tahasildar on 31 July, 2024
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NC: 2024:KHC:30285
RSA NO.1581 OF 2018
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 31ST DAY OF JULY, 2024
BEFORE
THE HON'BLE MR. JUSTICE E.S. INDIRESH
REGULAR SECOND APPEAL NO.1581 OF 2018 (INJ)
BETWEEN:
1. SRI. ANKAIAH
S/O LATE TALEYARI NANJAIAH
AGED ABOUT 66 YEARS.
2. SRI. RAJENDRA
S/O ANKAIAH
AGED ABOUT 46 YEARS.
BOTH ARE RESIDING AT:
HOSAMALAGI GRAMA,
KOLLEGALA TALUK,
CHAMARAJANAGAR DISTRICT - 577 440.
...APPELLANTS
(BY SRI. H. MALATESH, ADVOCATE)
AND:
Digitally signed by
ARUNKUMAR M S
Location: High 1. THE TAHASILDAR
Court of Karnataka
KOLLEGALA TALUK OFFICE,
KOLLEGALA,
CHAMARAJANAGARA DISTRICT - 577 440.
2. THE DEPUTY COMMISSIONER
OFFICE OF THE DEPUTY COMMISSIONER,
CHAMARAJANAGARA DISTRICT,
CHAMARAJANAGARA - 577 440.
...RESPONDENTS
(BY SRI. H. HANUMANTHARAYA LAGALI, AGA)
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RSA NO.1581 OF 2018
THIS REGULAR SECOND APPEAL IS FILED UNDER
SECTION 100 OF THE CODE OF CIVIL PROCEDURE, AGAINST
THE JUDGMENT AND DECREE DATED 29TH JUNE, 2018 PASSED
IN REGULAR APPEAL NO.08 OF 2018 ON THE FILE OF THE
SENIOR CIVIL JUDGE AND JMFC., KOLLEGALA, ALLOWING THE
APPEAL AND SETTING ASIDE THE JUDGMENT AND DECREE
DATED 23RD MARCH, 2016 PASSED IN ORIGINAL SUIT NO.134
OF 2012 ON THE FILE OF THE PRINCIPAL CIVIL JUDGE AND
JMFC., KOLLEGALA.
THIS APPEAL, COMING ON FOR ADMISSION, THIS DAY,
JUDGMENT WAS DELIVERED THEREIN AS UNDER:
CORAM: HON'BLE MR. JUSTICE E.S. INDIRESH
ORAL JUDGMENT
This Regular Second Appeal is filed by the plaintiffs
assailing the judgment and decree dated 29th June, 2018
passed in Regular Appeal No.08 of 2018 on the file of the
Senior Civil Judge and JMFC., Kollegala (for short, hereinafter
referred to as 'First Appellate Court'), allowing the appeal and
setting aside the judgment and decree dated 23rd March, 2016
passed in Original Suit No.134 of 2012 on the file of the
Principal Civil Judge and JMFC., Kollegala (for short, hereinafter
referred to as 'Trial Court'), wherein he suit filed by the
plaintiffs came to be decreed.
2. For the sake of convenience, the parties in this
appeal shall be referred to in terms of their status and ranking
before the Trial Court.
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3. It is the case of plaintiffs that the plaintiffs are in
possession and enjoyment of the suit schedule property bearing
Survey No.417/C measuring 1 acre out of 29.33 acres situate
at Hosamalagi Village, Kollegala Taluk. It is stated in the plaint
that, though the suit schedule property originally belongs to the
Government, the father of the plaintiff No.1 was cultivating the
same and accordingly, plaintiffs were in possession, after the
death of the father of the plaintiff No.1. It is further stated in
the plaint that the defendant-Authorities have issued notice
dated 27th April, 2011 to evict the plaintiffs from the suit
schedule property, without conducting an enquiry and following
the procedure as provided under law. It is further case of
plaintiffs that the suit schedule property is 'Halla' and cannot be
utilized for the purpose of the graveyard and therefore, the
plaintiffs have filed Original Suit No.134 of 2012 before the
Trial Court, seeking relief of permanent injunction in respect of
the suit schedule property.
4. On service of notice, defendants entered appearance
and filed detailed written statement contending that the
Government has reserved the suit schedule property for the
purpose of graveyard for SC/ST community at Hosamalagi
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Village and suit schedule property is 1 acre of land out of total
29.33 acres in Survey No.417/C of the said Hosamalagi Village.
It is stated in the written statement that the plaintiffs were
evicted from the suit schedule property in the presence of the
villagers and mahazar has been drawn on 02nd April 2012 and
accordingly, defendants sought for dismissal of the suit.
5. On the basis of pleadings on record the Trial Court
framed issues for its consideration.
6. In order to prove their case, plaintiffs have examined
two witnesses as PW1 and PW2 and got marked six documents
as Exhibits P1 to P6. On the other hand, defendants examined
one witness as DW1 and got marked 10 documents as Exhibits
D1 to D10. The Trial Court, after considering the material on
record, by judgment and decree dated 23rd March, 2016,
decreed the suit of the plaintiffs and restrained the defendants
from interfering with the peaceful possession and enjoyment of
suit schedule property by the plaintiffs, till they are evicted
under due process of law. Being aggrieved by the same,
defendant-Authorities have preferred Regular Appeal No.8 of
2018 on the file of the First Appellate Court and appeal was
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resisted by the plaintiffs. The First Appellate Court, after
considering the material on record, by its judgment and decree
dated 29th June, 2018 allowed the appeal and as such, set-
aside the judgment and decree passed in Original Suit No.134
of 2012 on the file of the Trial Court. Being aggrieved by the
same, plaintiffs have preferred this Regular Second Appeal.
7. Heard Sri. H. Malatesh, learned counsel appearing for
the appellants and Sri. Hanumantharaya Lagali, learned
Additional Government Advocate appearing for respondents.
8. Sri. H. Malatesh, learned counsel appearing for the
appellant-plaintiffs contended that the Trial Court, after
considering the material on record rightly decreed the suit of
the plaintiffs, by granting relief of permanent injunction against
the defendants, however, the First Appellate Court, without re-
appreciating the material on record has passed the impugned
judgment and decree which, requires to be set-aside in this
appeal.
9. It is the categorical argument advanced by learned
counsel appearing for appellants that the plaintiffs were in
settled possession in respect of the land in question and the
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respondent-Authorities ought to have resorted to provisions
contained under Section 39 of the Karnataka Land Revenue
Act, 1964 to evict the plaintiffs from the suit schedule property
and in absence of the same, the finding recorded by the First
Appellate Court, requires to be interfered with in this appeal.
10. Per contra, Sri. Hanumantharaya Lagali, learned
Additional Government Advocate appearing for respondents
submitted that the plaintiffs are neither the owners of suit
schedule property nor were in possession of the same. He
further contended that the suit schedule property has been
used as a graveyard by the SC/ST community as the same has
been granted by the Deputy Commissioner, Chamarajanagara
for the said purpose. Accordingly, learned Additional
Government Advocate submitted that the finding recorded by
the First Appellate Court is just and proper, which does not call
for interference in this appeal
11. In the light of the submission made by learned
counsel appearing for the parties, it is not in dispute that the
suit schedule property belongs to the Government and same
has been used as a graveyard by the SC/ST community as
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granted by the competent authority. That apart, the perusal of
the finding recorded by the First Appellate Court would indicate
that the Mahazar has been drawn as per Exhibit D3 and
accordingly, the respondent authorities have taken possession
of the suit schedule property on 02nd April, 2012. It is also
forthcoming from the Exhibit P1 that the respondent-Authorities
have issued notice to the plaintiffs and in this regard, the
plaintiffs had given representation as per Exhibit P2. The RTC
extracts produced at Exhibits P3 to P6, though show the name
of one Taleyari Nanjaiah in the cultivator column, however, the
perusal of the finding recorded by the First Appellate Court
would indicate that the possession of the suit schedule property
had been taken by the respondent-Authorities on 02nd April,
2012. Though the DW1 admits about the possession of the
plaintiffs in the cross-examination, documents produced by the
defendants itself speaks otherwise and therefore, the First
Appellate Court taking into consideration the fact that the
plaintiffs are not in possession of the suit schedule property
subsequent to drawing up of Mahazar on 02nd April, 2012
(Exhibit-D3), had allowed the appeal preferred by the
defendants. Therefore, taking into account the fact that the
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Mutation Register extracts produced at Exhibits D5 to D10, I
am of the view that the First Appellate Court, has rightly
interfered with the judgment and decree passed by the Trial
Court under Order XLI Rule 1 of the Code of Civil Procedure. In
that view of the matter, taking in account the finding recorded
by the Courts below that the plaintiffs are not in possession of
the suit schedule property pursuant to the Mahazar drawn by
the competent authorities on 02nd April, 2012 (Exhibit D3), no
interference be called for in this appeal. As the plaintiffs were
failed to make out a case for framing of substantial question of
law as required under Section 100 of the Code of Civil
Procedure, this appeal deserves to be dismissed at the stage of
admission itself. Accordingly, Regular Second Appeal is
dismissed.
SD/-
(E.S.INDIRESH)
JUDGE
ARK
