Karnataka High Court
Ananth Buwwa S/O Ganapat Buwwa Kathikar vs Town Muncipal Council on 28 October, 2024
Author: M.G.S.Kamal
Bench: M.G.S.Kamal
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RSA No. 200444 of 2015
IN THE HIGH COURT OF KARNATAKA,
KALABURAGI BENCH
DATED THIS THE 28TH DAY OF OCTOBER, 2024
BEFORE
THE HON'BLE MR. JUSTICE M.G.S.KAMAL
REGULAR SECOND APPEAL NO. 200444 OF 2015 (INJ)
BETWEEN:
1. ANANTH BUWWA
S/O GANPAT BUWWA KATHIKAR,
SINCE DEAD BY HIS LR'S
1A. PURUSHOTAM S/O ANANTH BUWWA
AGE: 61 YEARS, OCC: BUSINESS
R/O GOSAVI GALLI,
BASAVAKALYAN,
DIST. BIDAR.
1B. SRINIVAS S/O ANANTH BUWWA,
Digitally signed
AGE: 60 YEARS, OCC: BUSINESS
by SACHIN R/O GOSAVI GALLI,
Location: HIGH BASAVAKALYAN,
COURT OF
KARNATAKA DIST. BIDAR.
1C. GANESH S/O ANANTH BUWWA,
AGE: 52 YEARS, OCC: PREIST,
R/O GOSAVI GALLI,
BASAVAKALYAN,
DIST. BIDAR.
1D. SMT. BHAGYASHRI
W/O SUBHASH PATIL
D/O ANANTH BUWWA,
AGE: 45 YEARS, OCC: HOUSEWIFE,
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RSA No. 200444 of 2015
R/O SAWEWADI,
NEAR RAMA CINEMA THEATRE,
LATHUR.
...APPELLANTS
(BY SRI AMEETKUMAR DESHPANDE, SENIOR COUNSEL
FOR SRI SANDEEP PATIL, ADVOCATE)
AND:
1. TOWN MUNICIPAL COUNCIL,
BASAVAKALYAN,
BY ITS CHIEF OFFICER,
TOWN MUNICIPAL COUNCIL,
BASAVAKALYAN,
DIST. BIDAR-585437.
2. AGRICULTURAL PRODUCE
MARKETING COMMITTEE,
BASAVAKALYAN,
THROUGH ITS CHAIRMAN, A.P.M.C.,
BASAVAKALYAN,
DIST. BIDAR-585437.
...RESPONDENTS
(BY SRI GOURISH S. KHASHAMPUR, ADVOCATE FOR R1;
SRI MALLIKARJUN C. BASAREDDY, ADVOCATE FOR R2)
THIS RSA IS FILED UNDER SECTION 100 OF CPC,
PRAYING TO ALLOW THIS APPEAL AND SET ASIDE THE
JUDGMENT AND DECREE DATED 30.09.2015 PASSED IN
R.A.NO.40/2013 ON THE FILE OF THE II ADDITIONAL
DISTRICT JUDGE, BIDAR, SITTING AT BASAVAKALYAN,
CONFIRMING THE JUDGMENT AND DECREE DATED
7.2.2013 PASSED IN O.S.NO.78/1993 ON THE FILE OF
THE SENIOR CIVIL JUDGE AT BASAVAKALYAN, IS SET
ASIDE AND TO PASS ANY OTHER APPROPRIATE ORDERS.
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RSA No. 200444 of 2015
THIS APPEAL, COMING ON FOR ADMISSION, THIS
DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER:
CORAM: HON'BLE MR. JUSTICE M.G.S.KAMAL
ORAL JUDGMENT
(PER: HON'BLE MR. JUSTICE M.G.S.KAMAL)
Plaintiff is before this Court being aggrieved by the
judgment and decree dated 07.02.2013 passed in
O.S.No.78/1993 on the file of Senior Civil Judge at
Basavakalyan (hereinafter referred to as Trial Court' for
short), by which the said suit of the plaintiff filed for the
relief of mandatory injunction against the defendants for
removal of encroachment in respect of 2000 square yard
out of 1 acre 18 guntas in Sy.No.156 of Basavakalyan
came to be dismissed, which is confirmed by the II
Additional District Judge, Bidar, sitting at Basavakalyan
(First Appellate Court) by its judgment and order dated
30.09.2015 passed in R.A.No.40/2013.
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2. Brief facts of the case are that;
(a) Plaintiff had filed the above suit contending inter
alia that he is the manager and kartha of the joint family
consisting himself and his brothers and mother. That the
suit land was Patta land, earlier in possession of one
Dasayya also known as Hanumandas. He had no male
issues as such he adopted his grandson Narasayya also
known as Narasingdas. Both Dasayya and his adopted
grandson- Narasingdas passed away. Dasayya sold half
portion of the land in Sy.No.156 to one Manohar Buwa
Kathikar for consideration amount of Rs.45/- under sale
deed and the possession was delivered. Thus, the Manohar
Buwa had become the owner in possession of the said
property. Said Narasayya had filed an application for
sanction of Sikmi of the said half land in Sy.No.156 of
Basavakalyan in favour of Manohar Buwa on the premise
of same having been sold and possession having been
delivered to the said Manohar Buwa. On the very same
day, said Manohar Buwa had also filed an application to
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the Assistant Nazim of Court of Wards for sanctioning of
half land of sikmi to him in Sy.No.156 on the premise of
he having purchased the same for value of less than of
Rs.100/-. That on verification of the record, Sikmi was
sanctioned in favour of Manohar Buwa to the extent of half
of the said land. Eversince then said Manohar Buwa
continued to be in possession of the said land in
Sy.No.156.
(b) A registered deed of sale was also executed in
favour of the Manohar Buwa with respect of remaining half
of the land. As such, the Manohar Buwa became absolute
owner to the entire extent of land in Sy.No.156 measuring
4 acres 16 guntas and he was in possession and
enjoyment of the same until his demise.
(c) That an error had crept in the registered deed of
sale which was rectified by execution of rectification deed
by Narasayya. Upon the demise of Manohar Buwa, one
Ganapat Buwa being his only heir succeeded to the said
property. Revenue records were mutated in his name. Said
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Ganapat Buwa passed away leaving behind the plaintiff,
his brothers and mother to succeed to the said land. As
such they have been in continuation possession and
enjoyment of the said land.
(d) It is further case of the plaintiff that defendant
No.1 had made request to the Government for acquisition
of land to the extent of 2 acres 38 guntas in Sy.No.156 of
Basavakalyan for establishment of market yard.
Proceedings for acquisition were initiated by the Assistant
Commissioner, Bidar. That 2 Acres 38 guntas of land out
of said Sy.No.156 was acquired, award was passed, except
Ganapat Buwa none acquired right, title interest in the
land or in the compensation paid thereon. Thus, an extent
of 2 acres 38 guntas out of 4 acres 16 guntas was
acquired. After the acquisition, the acquired portion of the
land was to be demarcated and possession was to be
taken, as such Taluk Surveyor of Basavakalyan was
directed to measure the land and demarcated the acquired
portion of land. The Taluka Surveyor measured the entire
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extent of land in Sy.No.156 of Basavakalyan and
demarcate the acquired land for the purpose of market
yard. Boundary stones were also fixed, Mahazar was
drawn in the presence of Chief Officer of the TMC,
Basavakalyan. That possession of 2 acres 38 guntas of
land was given to the Municipality. The remaining extent
of 1 acre 18 guntas of land in Sy.No.156 remained in
possession of the plaintiff even as mentioned in
Panchanama drawn by the Taluka Surveyor.
(e) It is further case of the plaintiff that, however, an
extent of 2000 square yard out of 1 acre 18 guntas of land
owned and possessed by the plaintiff was sold by the
defendant No.1 in favour of the defendant No.2 without
having any right, title, interest for a consideration of
Rs.10,000/- in terms of deed of sale dated 18.10.1976.
That the area sold was 142 feet East West, 127 feet North
South, bounded on the east by 50 X 50 feet wide road
market yard of Basavakalyan, West by Basavakalyan-
Sastapur road, North by Samadhi- Pit 50' road to market
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yard, South by open space of TMC. Since the defendant
No.1 was neither having any right nor was in possession of
the property could not have alienated and handed over the
said 2000 square yard of area in favour of the defendant
No.2 under the purported sale transaction.
(f) It is further contended that sale was without
knowledge of the plaintiff. But when the plaintiff and his
brothers and mother learnt about the said sale transaction
the defendant No.2 obstructed the plaintiff and his
brothers and forcibly occupied the area and started to dig
foundation on the said plot in the month of August, 1978.
A suit in O.S.No.158/1978 was filed by the defendant No.2
before the Court of Munsiff at Basavanakalyan on
31.08.1978 against the plaintiff and his brothers for the
relief of permanent injunction and had even obtained
exparte temporary injunction. Based on the order plaintiff
was dispossessed by the defendant No.2 and has started
constructing the building, known as a Raith Bhavan on the
said plot. Plaintiff filed an application seeking temporary
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injunction and the said application was pending until
04.08.1982, by which time construction of the building of
Raith Bhavan was completed. Defendant No.2 thereafter
withdrew the said suit. Defendants were never in
possession of said 2000 square yard at any time and have
no right to put any building thereon. Hence, suit for
possession, declaration and for mesne profits.
3. Written statement is filed by the defendant Nos.
1 and 2 denying the plaint averments and allegations. It is
contended that land was the Inam land under Balaji
Temple, no individual member was the owner or was in
possession of the said land. Dasayya was simply a poojary
appointed by the management committee of the said
temple, he did not have any right in respect of the suit
land. Dasayya never adopted Narasayya alias
Narasinghadas. Sale of the portion of the property by
Dasayya in favour of Manohar Buwa Kathikar is also
denied. Claim of the Manohar Buwa became owner and in
possession of the land is also denied.
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4. It is contended that Narasayya never filed any
application before the Assistant Nazim of Court of Wards
as claimed in the petition. That since the Dasayya himself
never had any right, interest or possession of the subject
land the question of he conveying right, title interest in
favour of Manohar Buwa would not arise. That Manohar
Buwa was never the owner and in possession of the suit
land. The alleged execution of sale deed and rectification
of error is also denied. It is contended that since the
subject land is Patta land the decree allegedly passed in
O.S.No.22/1/1342 was of no consequence. Ganapath
Buwa was not the sole surviving member or successor of
the Manohar Buwa. Manohar Buwa was having two sons
and so Ganpath Buwa alone could not be the sole
successor of Manohar Buwa. That the plaintiff has either
owned or in possession of the land.
5. That the acquisition of the land by the
Government was for establishment of market yard,
Ganapath buwa had wrongly claimed compensation for the
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said land from the Government. Even the compensation is
paid to Ganapath Buva that would not make him the
owner of the land measuring 4 acres 16 guntas. Survey
conducted by the Taluk Surveyor in respect of Sy.No.156
had been subsequently set aside by the higher settlement
officials. As such the plaintiff cannot derive any benefit
from the said documents. Drawing of Panchanama in the
presence of the Chief Officer, TMC is also denied.
6. It is contended that defendant is the owner and
possession of 2 acres 38 guntas of land in Sy.No.156.
Plaintiff is not having any concern with remaining extent of
1 acre 18 guntas as the same formed part of Inam land
under Balaji Temple in which there is a well, pakka
constructed Balaji temple building and several grave yards
and several old trees are in existing. That 1 acre 18 guntas
of land cannot at all be owned and possessed by any
individual including the plaintiff or his ancestors which is
actually owned and possessed by the Balaji Temple. It is
contended that defendant is not having any concern in
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respect of 1 acre 18 guntas of land belonging to the Balaji
temple, allegations of plaintiff selling 2000 square yard out
of 1 acre 18 guntas of land in favour of defendant No.2 in
terms of registered deed of sale dated 18.10.1976 is also
denied.
7. It is contended that defendant No.1 sold 2000
square yard of land i.e., 140 ft. X 127 ft. out of the land
acquired by the Government measuring 2 acres 38 guntas
boundaries of which are as under;
East : 50 feet wide road market yard of
Basavakalyana.
West : Basavakalyan- Sastapur Road
North : Grave yards (i.e., samadhies under
Balaji temple)
South : Remaining open space of TMC.
8. Thus, defendant had only sold 2000 square
yards of open space to defendant No.2 which is lying just
towards northern side of the entire land in Sy.No.156
acquired by the Government and sold in favour of the
defendant No.2 for public purposes. Defendant No.2 has
been just rightly put in possession of the property.
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Defendant No.2 having purchased the said portion of the
land has put up construction of Raitha Bhavan. The
withdrawal of the suit by the defendant No.2 in OS
No.158/1978 is of no consequences. Hence, he sought for
dismissal of the suit.
9. Based on the pleadings, Trial Court framed the
following issues in O.S. No.78/1993 for its consideration;
1. Whether the plaintiff proves that he is the owner
of the suit area measuring 2000 Sq.yards as shown
in the Sketch Map over which Riath Bhavan is built
and that this suit area is part and parcel of the land
measuring 1 acre 18 guntas of Sy.No.156?
2. Whether the plaintiff proves that he was in lawful
possession of the suit area, bearing 2000 Sq.
Yards?
3. Whether defendant No.1 and 2 prove that Raith
Bhavan is situated in the acquired land measuring 2
acres 38 guntas of Sy. No. 156?
4. Whether defendants No.1 and 2 prove that the
land measuring 1 acre 18 guntas was the land of
the ownership and possession of Balaji Temple?
5. Whether the plaintiff proves that he is the owner
of the area situated around the suit area of 2000
Sq. Yards?
6. Whether defendants No.1 and 2 prove that the
present suit is bad for non joinder of necessary
parties viz,
(i) Vishwambar Buwwa.
(ii) Laxmikanth Buwwa.
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(iii) Murlidhar Buwwa.
(iv) Saraswathi Bai.
(v) Tarabai,
(vi) Mandakini.
7. Whether defendants No.1 and 2 prove that the
present suit is hit by the principles of resjudicata
by,
a) O.S.No.29/1/66, RA 2/67.
b) O.S.No. 127/78, R.A.98/79, RSA 422/82?
8. Whether defendant Nos. 1 and 2 prove that the
suit is barred by time?
9. Whether the suit is properly valued and Court fee
paid thereon is sufficient?
10. Whether the plaintiff is entitled to declaration
that he is the owner of the suit area measuring
2000 Sq.Yards and adjoining area which both
totally measuring 1 acre 18 guntas?
11. Whether the plaintiff is entitled to declaration
that the sale deed executed by defendant No.1 in
favour of defendant No.2 on 28-10-1976 in respect
of the suit area of 2000 Sq yards is null, void and
ineffective against him?
12. Whether the plaintiff is entitled to Mandatory
Injunction against defendant No.2 for demolition of
Raith Bhavan built by defendant No.2 on an area of
2000 Sq yards?
13. What relief are the parties entitled to?
14. What decree or order?
and recorded evidence. On appreciation of the evidence,
Trial Court by its impugned judgment and decree
dismissed the suit, but since that the plaintiff also filed a
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suit in O.S.No.55/1993 against the defendants therein for
relief of declaration to declare him as owner of land
measuring 1 acre 18 guntas of land in Sy.No.156 of
Basavakalyana by common judgment the plaintiff was
declared as the owner of the said 1 acre 18 guntas of land.
10. Aggrieved by the dismissal of O.S.No.78/1993
plaintiff preferred an appeal in R.A.No.40/2013 and
aggrieved by the declaration of relief granted in favour of
plaintiff, regular appeal in RA No.45/2013 was filed by the
defendants. The said appeals in R.A.No.45/2013 and
R.A.No.40/2013 were taken up for dismissal by the First
Appellate Court. The First Appellate Court framed the
following points for its consideration in R.A.No.40/2013,
which are as under;
1) Does plaintiff proves that the defendants have
constructed Rait Bahavan in 2000 Sq Yards
situated in the suit land measuring 1 acre 18
guntas of land?
2) Does trial court both judgments under challenge
need to be interred with?
3) What order?
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and on re-appreciation of the evidence, the First Appellate
Court confirmed the judgment and decree dated
07.12.2013 passed by the Trial Court and dismissed the
appeal in R.A.No.45/2013. Aggrieved by the same present
appeal is by the plaintiff.
11. Sri. Amith Kumar Despande, learned Senior
counsel appearing for the counsel for the petitioners
submitted that the Trial Court and the First Appellate
Court ought to have appreciated that the 2000 square
yard of land over which Raith Bhavan was constructed falls
within 1 acre 18 guntas of land and remaining land is in
ownership and possession of the plaintiff after acquisition
of 2 acres 38 guntas of land. He submits that the only
dispute which requires to be addressed on facts was
identification of exact location of the area over which Raith
Bhavan is constructed. The Trial Court and the First
Appellate Court not having adverted to the said aspect of
the matter have resulted in judgments being perverse
giving raise to substantial question of law.
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12. Heard and perused the records.
13. The claim of the plaintiff is in respect of 1 acre
18 guntas of land which according to the plaintiff has
remained after acquisition of 2 acres 38 guntas of land by
the respondent -State. Plaintiff has no grievance with
regard to the land which is acquired. The only claim of the
plaintiff is with respect to the 2000 square yard of land
which according to the plaintiff falls within the said 1 acre
18 guntas of land.
14. It is necessary at the outset to note that in suit
in O.S.No.55/1993 filed by the plaintiff seeking relief of
declaration of title against the defendants therein, the
plaintiff has been declared to be the owner of land
measuring 1 acre 18 guntas of land out of Sy.No.156 and
a consequential relief in the nature of direction to
defendants therein to hand over the possession to suit
land excluding the temple area therein has already been
passed.
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15. Learned senior counsel submits that as against
the said judgment and decree in O.S.No.55/1999,
defendants therein had preferred a regular appeal in
R.A.No.45/2013 which was dismissed, against which
defendants therein had filed RSA No.2000425/2015 which
has also been dismissed by order dated 01.04.2024 by
this Court, as against which apparently Spl. Leave Petition
(Civil) No.18254/2024 has been filed and same is pending
consideration.
16. The Trial Court on facts and on looking into the
boundaries mentioned in the written statement has found
that the Raith Bhavan, which was constructed on an area
of 2000 square yard is not falling anywhere within the land
measuring 01 acre 18 guntas belonging to the plaintiff. It
has further held that the said 2000 square yard of land
form part of 02 acre 38 guntas of land which was required
by the TMC. The said finding of fact has been affirmed by
the First Appellate Court as could be seen at paragraph
Nos.114, 115 and 116 of its judgment.
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17. In other words, the extent of land that belonged
to the plaintiff measuring 01 acre 18 guntas has been
declared to be the land belonging to the plaintiff and no
portion of the said 01 acre 18 guntas of land has been
encroached upon or any building thereon is constructed.
18. These reasoning and finding by Trial Court
affirmed by the First Appellate Court being one of question
of fact, in the absence of production of any contrary
material, this Court do not see any reason to interfere with
the same.
19. Needless to state that the claim of the plaintiff
with regard to 01 acre 18 guntas of land has been upheld
and his possession over the said land has been confirmed.
The entitlement of the plaintiff to receive the possession of
the same has been considered and the defendants in OS
No.55/1993 have been directed to deliver the same.
20. In that view of the matter, no substantial
question of law would arise for consideration.
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21. Appeals are accordingly dismissed.
Sd/-
(M.G.S.KAMAL)
JUDGE
RU/SN
CT:PK
