IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 10TH DAY OF DECEMBER, 2019 BEFORE THE HON’BLE MR. JUSTICE K.NATARAJAN REGULAR SECOND APPEAL No.259/2011 (DEC) BETWEEN:
Smt.Dakshayanamma, W/o late Chandraiah, Aged about 54 years, R/o Sanyasi Kodamaggi Village, Holehonnur Hobli, Bhadravathi Taluk – 577 301.
Presently residing at C/o Sureshaiah, Shankaramut Road, Near Hebbur College, Siddaruda Nagar, Old Town, Bhadravathi – 577 301.
... Appellant (By Sri.M.S.Harish Kumar, Advocate) AND:
1. Manjappa, Since deceased by LRs., 1(a) Kum.Vandana B.M., D/o Manjappa, Aged about 19 years, Sanyasi Kodamaggi Village, Holehonnur Hobli, Bhadravathi Taluk, Shivamogga.
2. K.V.Eshwarappa, S/o late Veerabhadrappa, Aged about 55 years, R/o Sanyasi Kodamaggi Village, Holehonnur Hobli, Bhadravathi Taluk – 577 301.
3. K.V.Rudrappa, S/o late Veerabhadrappa, Aged about 53 years, R/o Sanyasi Kodamaggi Village, Holehonnur Hobli, Bhadravathi Taluk ... Respondents (By Sri.B.K. Manjunath, Advocate for R1(a), R2 and R3) This Regular Second Appeal is filed under Section 100 of CPC., against the Judgment and Decree dated 18.10.2010 passed in R.A.No.366/2009 on the file of the Presiding Officer, Fast Track Court, Bhadravathi, allowing the appeal and setting aside the Judgment and Decree dated 09.09.2009 passed in O.S.No.3/1995 on the file of the Civil Judge (Sr.Dn.) and JMFC, Bhadravathi.
This Regular Second Appeal coming on for further hearing, this day, the Court delivered the following:
JUDGMENT This appeal is filed by the appellant/plaintiff being aggrieved by the judgment and decree passed by the Fast Track Court, Bhadravathi, (herein after referred to as First Appellate Court) in R.A.No.366/2009 dated 18.10.2010 for having allowed the appeal filed by the respondents and dismissed the suit filed by the plaintiff before the Civil Judge, Senior Division and JMFC, Bhadravathi, (herein after referred to as ‘Trial Court’) in O.S.No.3/1995.
2. Heard the arguments of the learned counsel for the appellant as well as the learned counsel for the respondents.
3. The ranks of the parties before the Trial Court is retained for convenience.
4. The case of the plaintiff before the Trial Court is that the plaintiff is the owner of the land re-survey Nos.73 and 74 of Sannyasikodamaggi village in Holehonnur Hobli, Bhadravathi Taluk, measuring 1 acre 9 guntas each. The foster father of plaintiff Mudduveraiah was allotted the land measuring 1 acre 9 guntas in re-survey No.73 and Mudduveraiah and one more relative of plaintiff Rudraiah were allotted 1 acre 9 guntas each in land bearing Sy.No.36 as per the land grant order of the Government.
5. The said Mudduveraiah has executed a Will in favour of plaintiff in respect of Sy.No.73 by Will dated 25.12.1997 and the plaintiff’s grand father Rudrappa has also executed a Will in respect of land bearing Sy.No.74 on 01.05.1978. Mudduveraiah was assigned the land in new Sy.No.73 and Rudraiah was assigned the land in new Sy.No.74 and the first defendant assigned the land in new Sy.No.75. The Survey records were prepared and maintained. In the year 1986, the first defendant forcibly entered and occupied the portion of the land shown as ‘A, B, C, D and E’ in the plaint sketch and plaintiff was pushed to the eastern side in Sy.No.75. ‘A, B, C, D and E’ portion is mentioned as plaint ‘A’ schedule. There was some confusion. Defendant Nos.3 to 5 made a fest of the confusion and have occupied forcibly the portion of ‘C, F, G, H, E and D’ and said portion is mentioned as ‘B’ schedule land. The plaintiff has approached the Survey Department for fixation of boundaries and haddbast. Plaintiff came to know with exactitude the extents of land in the forcible possession of the defendants. There were local panchayaths held for amicable settlement between the parties, but the defendants did not heed the advise of the elders. Hence the plaintiff filed suit for relief of declaration and peaceful possession.
6. Pursuant to the notice issued by the trial Court, 1st and 5th defendants appeared before Court and filed written statement by denying the averments of the plaint and also denied the grant of the lands to those persons and also denied the plaintiff as owner of the properties by registered Will. However, it is admitted that the Tahsildar, Bhadravathi had granted 1 acre 9 guntas of land to Mudduveeraiah under Saguvali Chit No.1/77-78. But however, the allotment of land in favour of Rudraiah in S.C.No.537/77-78 was denied. The 1st defendant was granted 1 acre 9 guntas by the Tahsildar, Bhadravathi in S.C.No.273/77-78 and denied that in the year 1986, 1st defendant has forcibly occupied the ‘A, B, C, D and E’ portion and pushed the plaintiff to Eastern side. Further contended that the plaintiff has created documents of Will. The 1st defendant is in possession of 1 acre 9 guntas of land and he is in possession and cultivate the same land from the date of issuing of Saguvali Chit till today. No land has been granted to Rudraiah as mentioned in the plaint and the records have been created colluding with the Survey Authorities. Hence, prays for dismissal of the suit.
7. Based upon the rival pleadings, the Trial Court framed issues for its consideration. The First Appellate Court has translated the Kannada version of issues to English version in its judgment at page No.05, which are as under:
1. Does plaintiff prove the execution of two wills, one by Muttuveeraiah on 26.12.1977, another Will by Rudraiah on 01.05.1978 in respect of the suit lands Sy.No.73 & 74 of Sanyasikodamagge village?
2. Does the plaintiff prove that the lands in old survey number No.36 renumbered as 73, 74 & 75 of Sanyasikodamagge village?
3. Does the plaintiff further prove that 1st defendant also granted 1 acre 9 guntas of land at the time of granting land in favour of Muttuveeraiah and Rudraiah in Sy.No.36 of Sanyasikodmagge village?
4. Does the plaintiff further prove that defendant No.1 encroached the ‘A’ schedule portion and defendants Nos.3 to 5 have encroached ‘B’ schedule portion of plaintiff’s land?
5. Whether the plaintiff is entitled for the relief of declaration and possession as prayed?
6. What decree or order?
8. The plaintiff examined as PW-1 and four witnesses were examined as PW.2 to 5 and got marked 50 documents as Ex.P.1 to P.50. On the contrary, defendant No.1 examined as DW.1 and two witnesses were examined DW.2 and 3 and got marked 12 documents as Ex.D1 to D12.
9. After considering the evidence on records, the trial Court has decreed the suit of the plaintiff. Assailing the same, the defendants filed appeal before First Appellate Court in R.A.No.366/2009. The First Appellate Court after hearing the arguments has framed the points for consideration as follows:-
1. Whether the plaintiff – A.E.Drakshyanamma establishes that she was owner and possessor of land mentioned in the sketch as ‘A B C D E’ shown in ‘A’ schedule and ‘C F G H E D’ shown in ‘B’ schedule by virtue of grants made to Mudduveeraiah and Rudraiah?
2. Whether the impugned judgment & decree dated 09.09.2009 passed by the trial court is erroneous, against the evidence on record and probabilities of case and there is a need for interference by this Court?
3. What order?
10. The First Appellate Court answered the point No.1 in the negative and point No.2 in the affirmative setting aside the decree passed by the trial Court and dismissed the suit of the plaintiff. Assailing the same, the plaintiff is before this Court by way of second appeal.
11. Learned counsel appearing for the appellant contended that the First Appellate Court has committed an error in considering the evidence and documents produced by the plaintiff and also taken wrong conclusion that towards western side, the remaining portion of land Sy.No.36 is situated. Whereas, in the Tippani Utar produced at Ex.P.9, towards the western side of Mudduveeraiah’s land, Sy.No.37 is situated.
12. There is no documents of the defendants to show that the lands bearing Sy.Nos.73 and 74 are allotted and mutated in their names. As per Ex.P.3 – Saguvali Chit, 1 acre 9 guntas of land each were granted to Mudduveeraiah and Rudraiah and another portion of 1 acre 9 guntas of land was granted to Neelamma – the first defendant. The plaintiff has also produced the Grant certificates issued in favour of Mudduveeraiah and Rudraiah at Exs.P.4 and P.5 and Grant Certificate copy given to Neelamma is produced as Ex.P.6. The Rough Sketch prepared by the Surveyor on 16.09.1977 is marked as Ex.P.7. In the said Rough- sketch, name of Mudduveeraiah and Rudraiah are shown and the lands are stated to be as per Serial Nos.2, 3 and 4. The 1st portion of the land is said to be mentioned for K.V.Eshwarappa, which was rejected by the Government and allotted the land to three persons namely Mudduveeraiah, Rudraiah and Neelamma. Such being the case, the defendants encroached the portion of the land belonging to the plaintiff which was derived by her, by way of Wills dated 25.12.1977 and 01.05.1978 executed in her favour by Mudduveeraiah and Rudraiah respectively. The trial Court has appreciated the evidence and also considering the report of the Commissioner has rightly decreed the suit. But, the First Appellate Court due to confusion has held that the Commissioner report is not correct, which is against evidence of the parties to the suit.
13. The learned counsel for respondents contended that the claim of the defendants is that the Tahsildar, Bhadravathi had granted 1 acre 9 guntas of land to Mudduveeraiah under Saguvali Chit No.1/77-78. But, they denied the allotment of land in favour of Rudraiah in S.C.No.534/77-78 and hence there is no question of executing the Will in favour of the plaintiff is unsustainable. The grant order and revenue entries are not challenged by the defendants and therefore, learned counsel for the defendants submits that the appeal could not be allowed and the order of the First appellate Court cannot be set aside.
14. Learned counsel for the respondents supported the judgment of the First Appellate Court and contended that boundaries measured by the Commissioner appointed by the Court at Ex.P.12 is not correct. The land granted in favour of Neelamma by the Government was not mutated immediately and that itself is not a ground to say that she has encroached plaintiff’s land. Therefore, prayed for dismissing the appeal as there is no substantial question of law involved in this appeal.
15. Upon hearing arguments of the learned counsel for the parties and on perusal of the records, the substantial question of law raised for this Court is as follows:-
1. Whether the 1st Appellate Court is justified in holding that the relief sought by the plaintiff can not be granted despite the fact that the plaintiff has proved the title over the land in question and encroachment by the defendants?
2. Whether the 1st Appellate Court is justified in reversing the judgment and decree passed by the trial Court on the ground that if the decree as sought by the plaintiff is granted the same would affect the Defendant No.1?
16. As regards to the First Substantial Question of Law, on perusal of the records, it is admitted fact that as per Ex.P.3, Government- Tahsildar has granted land measuring 1 acre 9 guntas each in Sy.No.36 in favour of Mudduveeraiah, Rudraiah and Neelamma. Though the defendants have contended that there is over writing in Serial Nos.2 and 3 of the Grant order and it clearly reflects the name of the Rudraiah has been inserted in between Mudduveeraiah and Neelamma’s land. Though, there is over writing in this document, but however, defendants are not able to establish that the said over writing is done later on after the grant order was passed. The plaintiff has produced the Grant Certificate at Exs.P.4, P.5 and P.6, which was issued based on the Grant order issued by the Tahsildar. The Ex.P.3 – Grant order which corroborates with Exs.P.4 to 6 shows that all these three grantees namely Mudduveeraiah, Rudraiah and Neelamma have been granted lands in Sy.No.36 measuring 1 acre 9 guntas each.
17. The Ex.P.7 is the Survey rough sketch prepared by the Surveyor at the time of granting lands to these grantees, wherein Sy.No.36 is the vast extent of land out of which one K.V.Eshwarappa and other three grantees have filed application for granting of land and land was bifurcated as Block Nos.1 to 4. The first block measuring 2 acres is shown in possession of K.V.Eshwarappa, second block measuring 1 acre 10 guntas is shown in possession of Mudduveeraiah, the third block measuring 1 acre 10 guntas is shown in possession of Rudraiah S/o Kadaiah and fourth block measuring 1 acre 20 guntas is shown in possession of Neelamma – the defendant No.1.
18. The Government has granted lands to Mudduveeraiah, Rudraiah and Neelamma but has rejected the application of K.V.Eshwarappa, the land measuring 2 acres which is situated at extreme western side of Sy.No.36. Subsequent to the grant, the said Mudduveeraiah and Rudraiah executed a Will in favour of the plaintiff and the same was challenged by the defendants.
19. The First Appellate Court has categorically held that the defendants cannot dispute the Will executed in favour of the plaintiff and claiming her right over the property under the will. Coming to the contention of the plaintiff in respect of the dispute that the plaintiff has filed Sketch at Ex.P.14 which shows that the defendants have encroached the portion of land. The sketch has been prepared by the plaintiff based upon the Surveyor’s sketch conducted by the authorities in Ex.P.12. The Tippani Utar produced at Exs.P.9 and 10 goes to show that the Tippani has been prepared by the authorities based upon the land grant order. The name of the Mudduveeraiah and Rudraiah has been entered in revenue record as per Mutation transfer at Ex.P.18. Wherein, the mutation register extract clearly goes to show the names of three persons namely, Mudduveeraih, who has been granted 1 acre 9 guntas in Sy.No.73, Rudraiah, who has been granted 1 acre 9 guntas in Sy.No.74 and Neelamma, who has been granted 1 acre 9 guntas in Sy.No.75 and remaining 30 acres 29 guntas is shown in the name of the Government. Based upon the mutation register extract in M.R.No.15/81-82 when the revenue entries were made in the name of the grantees as per the grant survey, the same has not been challenged by the defendants by filing any appeal before Assistant Commissioner.
20. Even the learned counsel for the defendants is not able to show any one document reflecting the name of the defendant No.1 in the revenue record other than Ex.D.1. The revenue entries produced by the defendants in Ex.D.1 shows that Sy.No.75 stands in the name of Neelamma vide M.R.No.15/81-82. The Ex.D.2 shows that Sy.No.74 stands in the name of Rudraiah and thereafter, the name of Rudraiah has been rounded off and inserted the name of Dakshayanamma – plaintiff. The Ex.D.3 shows that Sy.No.73 stands in the name of Dakshayanamma – plaintiff under the Will. The Ex.D.4, which is the Mutation Register shows that Sy.No.36/2 stands in the name of Rudraiah.
21. All these documents clearly go to show that the land in Sy. No.73 derived by the plaintiff and plaintiff is shown as owner of the land. Whereas, the very document of the defendant i.e., Ex.D.1 clearly shows that the defendant No.1 is in possession and enjoyment of the land in Sy. No.75 but not Sy. No.73. But, as per the survey sketch produced by the plaintiff in Ex.P.12 and the suit schedule sketch and Ex.P.14 corroborates each other. Even though the Government Granted Sy. No.75 to the defendant but the defendants are in possession of the portion of the land in Sy. No.73 and the same was proved by examining the P.W.5. The Commissioner appointed by the trial Court on the request made by the defendant. P.W.4 is the Surveyor who also gave evidence in favour of the plaintiff showing that plaintiff’s land has been encroached by the defendants as per the sketch produced by them. The survey sketch and suit schedule sketch of the plaintiff corroborates the sketch produced by the Court Commissioner. The Commissioner’s Report though objected by the defendants but the Commissioner has not been cross-examined by the defendants before the trial Court. The encroachment shown by the Commissioner in Sl. Nos.9 to 14, there is clear demarcation of the land shown by the Commissioner, wherein defendant No.1 is in occupation of the land in Sy. No.73. The Sy. No.75 which was granted to defendant No.1 has been situated on the extreme eastern side of the land and thereafter, land in Sy. No.74 belongs to Rudraiah situated on the west (middle) and land in Sy. No.73 belongs to Madduveeraiah is situated on the western side of Sy. No.74. That apart, the remaining land in Sy. No.36 which was a portion of the land, was in occupation of K.V.Eshwarappa is also situated. It is also submitted by the learned counsel for plaintiff that the said portion of the land on the western side to Sy. No.73 has been granted to the plaintiff by the Government, which was challenged by the defendants and it was confirmed by the Court. However, no documents are produced in this regard.
22. As per the evidence of P.Ws.1, P.Ws.4 and 5, the Surveyor as well as the Commissioner, the plaintiff was successful in proving that the land in Sy. No.73 and Sy. No.74 has been granted to Madduveeraiah and Rudraiah and was bequeathed by way of Will and also proved the encroachment made by the defendants by the evidence of the Commissioner as well as Commissioner’s Report, which was not at all disputed by the defendants. Such being the case, the 1st Appellate Court committed an error in holding the land in Sy. No.73 has been granted to defendant No.1 without any document, which is against the documentary evidence i.e., Exs.P.4 to 10 and 18 and other remaining records. Therefore, the judgment of the 1st Appellate Court on this ground is to be set-aside. Accordingly, I answered First Substantial Question of Law in favour of the appellant-plaintiff and against the defendants-respondents.
23. As regards to the II Substantial Question of Law, in view of the findings given in the first substantial question of law holding that the plaintiff succeeded in proving the land in Sy. Nos.73 and 74 granted to Madduveeraiah and Rudraiah under the Grant order i.e., Ex.P.3 and Grant Certificates – Exs.P.4 to 6, Ex.P.7 – Survey sketch, Akarband Extract – Ex.P.8 and Tippanies – Exs.P.9 and 10, the 1st Appellate Court by misreading the judgment of the trial Court and misread the documents especially Ex.P.9 and Ex.P.10 – Tippanies, which clearly show that the two portions of land situated. Out of which, the right side i.e., eastern side of the land has been granted to Madduveeraiah and on the western side the remaining land in Sy. No.36 is situated, thereafter, the boundaries have shown in Sy. No.37, but the 1st Appellate Court committed an error in holding that the land in Sy. No.37 is situated on the western side of the land granted to Madduveeraiah, which is against the Ex.P.7. Likewise, Ex.P.10 – the Tippani in favour of Rudraiah, in Sy.No.74 which is adjacent to the Sy.Nos.73 and 75. Admittedly, there are no boundaries mentioned in Exs.P.5 and 6 – the Grant orders, however, the boundaries mentioned in Ex.P.4, where the land granted in favour Madduveeraiah, where it is clearly shown as on the eastern side – block No.3, it was subsequently granted to Rudraiah but on the western side block No.1, which was in occupation of Eswarappa and on the northern side Sy. No.38 is situated. Though the plaintiff as well as the defendants were in unauthorized occupation by expanding their measurements on the northern side and on the southern side, the remaining portion in Sy. No.36, which is now in the occupation of some of the defendants. Once the boundary has not been mentioned for the land of the 1st defendant in Ex.P.6, she could have mutated her name and phoded the boundaries by approaching Revenue Authorities immediately after the grant, which was not done. Whereas, the plaintiff approached the Revenue Authorities immediately after the execution of the Will in her favour and got mutated the names of Madduveeraiah and Rudraiah in the Revenue Records. Based on the Will, she got her name mutated in the Revenue Records. These Revenue Records and documents were not disputed or denied by the defendants by examining any of the Government Authorities either Revenue Authorities or challenging the entries in the revenue records by filing any appeal before the Revenue Court. Such being the case, the 1st Appellate Court committed an error in reversing the judgment of the trial Court which was based on the both oral as well as documentary evidence, which is not sustainable. Accordingly, I answered II Substantial Question of Law in favour of the plaintiff-appellant against the defendant-respondent.
24. In view of the findings given in Substantial Questions of Law Nos.1 and 2, the plaintiff is able to prove that the land has been granted in favour of the original grantees Madduveeraiah and Rudraiah and she derived title under the Will as per Exs.P.1 and 2 and she was able to prove the encroachment made by the defendants by examining the P.Ws.4 and 5 – the Surveyor and Court Commissioner and Ex.P.12 - Commissioner’s Report. Thereby, the trial Court has rightly decreed the suit of the plaintiff. Whereas, the 1st Appellate Court committed an error in reversing the judgment without assigning any reason which is against both oral and documentary evidence produced by the plaintiff. Therefore, the judgment of the 1st Appellate Court is required to be set-aside. Accordingly, I proceed to pass the following;
ORDER The Regular Second Appeal filed by the appellant-plaintiff is allowed.
The judgment passed by the 1st Appellate Court in R.A. No.366/2009 dated 18.10.2010 is hereby set-aside and the judgment of the trial Court passed in O.S. No.3/1995 dated 09.09.2009 is hereby confirmed.
SD/- JUDGE MH/NBM