IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 14TH DAY OF AUGUST, 2019 BEFORE THE HON’BLE MR. JUSTICE B. VEERAPPA REGULAR SECOND APPEAL NO.1155/2011 BETWEEN:
K. S. LOKESH, S/O SOMASHEKARAIAH AGED ABOUT 55 YEARS, RESIDING AT KARIKERE KASABA HOBLI, TIPTUR TALUK-572201.
(BY SRI JAGADEESH MUNDARAGI, ADVOCATE) AND:
SMT KALAMMA W/O NANJUNDAIAH, REPRESENTED BY HER SON AS A POWER ATTORNEY HOLDER BASAVARAJU, S/O NANJUNDAIAH, AGED ABOUT 58 YEARS, RESIDING AT KODIHALLI, ARASIKERE TALUK-573103.
... APPELLANT ... RESPONDENT (BY SRI UDAYA PRAKASH MULIYA, ADVOCATE FOR SRI I. THARANATH POOJARY, ADVOCATE) **** THIS REGULAR SECOND APPEAL IS FILED UNDER SECTION 100 OF CPC., AGAINST THE JUDGMENT AND DECREE DATED 24.1.2011 PASSED IN R.A.NO.572/2009 (OLD NO.122/2003) ON THE FILE OF THE PRESIDING OFFICER, FAST TRACK COURT, TIPTUR, ALLOWING THE APPEAL AND SETTING ASIDE THE JUDGMENT AND DECREE DATED 22.10.2003 PASSED IN O.S.NO.153/2000 ON THE FILE OF THE PRL. CIVIL JUDGE (JR.DN) & JMFC., TIPTUR.
THIS REGULAR SECOND APPEAL COMING UP FOR ADMISSION THIS DAY, THE COURT DELIVERED THE FOLLOWING.
J U D G M E N T This is unsuccessful plaintiff’s Regular Second Appeal against the Judgment & Decree dated 24.1.2011 made in R.A. No.572/2009 on the file of the Fast Track Court, Tiptur allowing the appeal by setting aside the Judgment & Decree dated 22.10.2003 made in O.S. No.153/2000 on the file of the Prl. Civil Judge (Jr.Dn.) & JMFC, Tiptur and dismissing the suit for Permanent Injunction filed by the plaintiff.
2. The present appellant who is the plaintiff before the trial Court filed O.S. No.153/2000 for Permanent Injunction against the defendant contending that the land bearing Sy.No.114 to an extent of 3.03 guntas of Karikere village mentioned in the plaint schedule was a Government land and the plaintiff was enjoying the same since long time. The State Government has granted the suit schedule property to the plaintiff and the plaintiff is in possession and enjoyment of the suit schedule property as lawful owner. The defendant has no claim and interest in respect of the suit schedule property and making attempts to dispossess the plaintiff from the suit schedule property. Hence, the plaintiff filed the suit for Permanent Injunction.
3. The defendant has filed the written statement denying the averments made in the plaint and contended that the land bearing Sy.No.114/2 of Karikere village measuring 3 acres was granted to him under the grant certificate dated 10.4.1978. The same was upheld by the Assistant Commissioner, Tiptur by the order dated 29.5.1982. Earlier, the defendant filed O.S. No.175/1997 against the plaintiff’s father viz., Somashekaraiah when he attempted to interfere with the above property and obtained decree for Permanent Injunction in respect of Sy.No.114/2. The defendant also filed Criminal case against the plaintiff and his father. It is further contended that the land mentioned in the plaint has not been granted to the plaintiff. Therefore, the plaintiff sought for dismissal of the suit.
4. Based on the aforesaid pleadings, the trial Court framed the following issues:
1. Whether the plaintiff proves his possession over suit schedule property as on the date of institution of suit ?
2. Whether the alleged interference by the defendant over suit schedule property is true ?
3. Whether the plaintiff is entitled for the relief of permanent injunction as prayed for ?
4. What order or decree ?
5. In order to prove his case, the plaintiff examined himself as PW.1 and examined two other witnesses as PWs.2 and 3 and marked the documents Ex.P1 to Ex.P8. The power of attorney holder of the defendant has been examined as DW.1 and one more witness is examined on behalf of the defendant as DW.2 and marked the documents Ex.D1 to Ex.D41.
6. The trial Court considering both oral and documentary evidence on record, has recorded a finding that the plaintiff proved his possession over the suit schedule property as on the date of institution of the suit and also proved the alleged interference by the defendant over the suit schedule property and plaintiff is entitled for the relief of Permanent Injunction. Accordingly, the trial Court by its Judgment & Decree dated 22.10.2003 granted Permanent Injunction as prayed for.
7. Aggrieved by the Judgment & Decree passed by the trial Court, the defendant filed appeal in R.A. No.572/2009 before the Fast Track Court, Tiptur. The learned Judge after hearing both the parties by the impugned Judgment & Decree dated 24.1.2011 has recorded a finding that the defendant proved that the learned trial Judge erred in holding that the plaintiff has proved his possession over the suit schedule property and interference from the defendant and is entitled for Permanent Injunction and accordingly, the appeal came to be allowed and set aside the Judgment & Decree of the trial Court. Hence, the present Regular Second Appeal is filed by the plaintiff.
8. I have heard the learned counsel for the parties to the lis.
9. In the grounds urged in the appeal memo, the appellant – plaintiff contended that the Lower Appellate Court erred in interfering with the discretionary relief granted by the trial Court based on the oral and documentary evidence holding that the appellant – plaintiff is in possession of the suit property. It is further contended that the trial Court rightly come to the conclusion that the defendant is claiming a different property in Sy.No.114/2 measuring 3 acres, whereas the plaintiff is claiming the property situated in Sy.No114 measuring 3 acres 3 guntas. It is further contended that the appellant – plaintiff also filed Revision against the order passed by the Assistant Commissioner. The First Appellate Court also failed to see that when it has observed that there is difference in boundaries of the suit schedule property and the property claimed by the respondent – defendant, it erred in holding that both are one and the same. Therefore, he sought to set aside the Judgment & Decree passed by the lower appellate Court on the ground of non-consideration of the oral and documentary evidence on record.
10. Per contra, Sri Uday Prakash Muliya, learned counsel appearing for Sri Tharanath Poojary, learned counsel for the respondent – defendant sought to justify the impugned Judgment & Decree of the Lower Appellate Court. He would further contend that the alleged grant made in favour of the plaintiff came to be cancelled by the Assistant Commissioner, which was the subject matter of Revision before the Deputy Commissioner in R.A. No.49/2005-06. The Deputy Commissioner remanded the matter to the Assistant Commissioner for reconsideration afresh. He would further contend that the plaintiff has not produced any material documents to prove that the property was granted to him by the Land Grant Committee and he is in possession and enjoyment of the suit schedule property based on the oral and documentary evidence on record. In the absence of any material on record, the Lower Appellate Court is justified in reversing the Judgment & Decree passed by the trial Court. Therefore, he sought to dismiss the present appeal.
11. Having heard the learned counsel for the parties, it is an undisputed fact that the plaintiff filed the suit for Permanent Injunction in respect of Sy. No.114 measuring 3 acres 3 guntas morefully described in the plaint schedule mainly on the ground that the said land was granted to the plaintiff by the Land Grant Committee. The same is objected by the defendant by filing the written statement. The trial Court considering the material on record, has recorded a finding that the land in Sy.No.114 granted to many persons who are in unauthorized occupation. It is evident from Ex.P4, the sketch that the plaintiff shown to be in possession of the boundaries mentioned in the plaint schedule. The land shown to be in possession of the plaintiff in Ex.P4 is no way connected to the land in Sy.No.114/2 which is in possession of the defendant. It is seen from the cross-examination of DW.1 that the defendant came to know about the grant of the land to the plaintiff after she came to the court and she has not filed any appeal against grant made in favour of the plaintiff. Accordingly, the trial Court held that the plaintiff has proved his possession and interference by the defendant over the suit schedule property and decreed the suit and granted Permanent Injunction.
12. The Lower Appellate Court after reconsidering the entire material on record and framing the points for determination as contemplated under Order 41 Rule 31 of the Code of Civil Procedure, recorded a finding that the admitted facts of the case are that Sy.No.114, Block number 2 measuring 3 acres was granted to defendant long back and she is in possession of said property. The contention of plaintiff is that suit schedule property in given boundaries measuring 3 acres 3 guntas was granted to him and even prior to the grant, plaintiff has been in possession of said property unauthorizedly, and he has paid T.T. fine for it. The Land Grant Committee passed a resolution and it was confirmed by the Assistant Commissioner. To substantiate the contention of plaintiff, he mainly relied upon the proceedings of Land Grant Committee as per Ex.P1, the order passed by the Tahasildar as per Ex.P2, mahazar as per Exhibit P3; sketch as per Ex.P4; and order passed by Assistant Commissioner as per Ex.P5.
13. The Lower Appellate Court further recorded a finding that Ex.D4 and D5 are the certified copies of judgment and decree passed in O.S. NO.175/97, which was filed by the present defendant against father of plaintiff. Ex.D6 is the order passed by Assistant Commissioner holding that present plaintiff was in possession of three acres in Sy.No.114. However, said order is not in force. The order passed by the Assistant Commissioner is that plaintiff is not in possession of suit property and cancelled the grant in his favour.
14. The Lower Appellate Court also recorded a finding that the plaintiff relying upon the recitals in mahazar as per Ex.P3 stated that plaintiff is in possession of suit schedule property and it could be granted to him. However, contrary to this mahazar, defendant has produced another mahazar as per Ex.A3. According to it, plaintiff is claiming the property granted to defendant. Ex.A5 is the comparative sketch prepared by the Revenue Inspector and it reveals that exactly the property granted to defendant is claimed by plaintiff and he is not in possession of the property. The Assistant Commissioner passed an order as per Ex.A7 and cancelled the grant in favour of the plaintiff.
15. The Lower Appellate Court further recorded a finding that the cross-examination of AW.1 reveals that he was not present at the time of preparing those documents. However, they are public documents and Ex.P3 is also the public document. On careful perusal of all the aforesaid documents, it is crystal clear that the grant made in favour of the defendant is earlier grant and the grant made in favour of plaintiff was subsequent one. The property granted to defendant was granted to plaintiff. When once the property was granted to defendant, the same property cannot be granted to plaintiff. Under those circumstances, the grant in favour of plaintiff will not prove his possession over suit schedule property. Of course, there is some difference in the boundaries furnished in plaint and the boundaries of the property claimed by the defendant. But, on careful comparison of the boundaries furnished in plaint and the boundaries of the property claimed by defendant, it is seen that both are claiming the northern boundary as the property in Sy.No.117. According to the sketches produced by defendant, only two persons are having property having Sy.No.117 as northern boundary. Amongst them, one is defendant and another is Shadaksharaiah. Plaintiff has not furnished the eastern and western boundary to his property as the property of defendant or the property of Shadaksharaiah. The documents produced by plaintiff are not helpful for plaintiff to prove that he is in possession of suit schedule property within the boundaries mentioned in the schedule.
16. The Lower Appellate Court further recorded a finding that the RTC extract is the main document to prove possession of plaintiff over suit schedule property. However, plaintiff has not produced the RTC extract to show his possession. PWs.2 and 3 are not neighbours and they are not aware about suit schedule property. Hence merely on the basis of documents produced by plaintiff i.e., Ex.P1 to Ex.P6 and Ex.P8, it cannot be said that as per the grant in favour of plaintiff, he is in possession of suit schedule property. Without RTC extract, the possession of plaintiff cannot be proved. Furthermore, the documents produced by the defendant establish that the grant of property in favour of plaintiff is same property already granted to defendant. Though plaintiff preferred revision against the order of learned Assistant Commissioner, no stay order is granted in the said Revision.
17. The Lower Appellate Court considering the entire material on record has come to the conclusion that the property granted in favour of the defendant earlier was subsequently granted in favour of the plaintiff. The plaintiff has not produced any material documents to prove that he was in possession and enjoyment of the suit schedule property as on the date of the suit. The trial Court has not considered the material on record in the proper perspective and therefore requires interference.
18. The fact remains that during the pendency of the appeal before the Lower Appellate Court, the Revision filed by the plaintiff in R.A. No.49/2005-06 before the Deputy Commissioner under Section 50 of the Karnataka Land Revenue Act came to be allowed by the order dated 13.12.2013 and the order passed by the Assistant Commissioner dated 12.12.2005 canceling the grant made in favour of the plaintiff came to be set aside and the matter is remanded to the Assistant Commissioner for reconsideration and pass appropriate orders. Since the matter is remanded to the Assistant Commissioner with regard to cancellation of the grant, whether the suit schedule property is granted to the plaintiff or the defendant has to be adjudicated by the competent authority.
19. In view of the above, the Lower Appellate Court merely relying upon the order passed by the Assistant Commissioner by which he has cancelled the grant made in favour of the plaintiff, interfered with the order passed by the trial Court and the same cannot be sustained. When the Deputy Commissioner has set aside the order passed by the Assistant Commissioner and remanded the matter to the Assistant Commissioner, the order passed by the Lower Appellate Court reversing the judgment of the trial Court cannot be sustained.
20. Since the Deputy Commissioner by the order dated 13.12.2013 made in R.A. No.49/2005-06 remanded the matter to the Assistant Commissioner to decide the title and grant between the parties, the injunction order granted by the trial Court and reversed by the Lower Appellate Court is always subject to the result of the original proceedings initiated by the original authority with regard to grant and ultimate decision made by the original authority with regard to grant of land in question, is always binding on the parties. No substantial question of law is involved in the present Regular second appeal to admit the appeal.
Accordingly, this Regular Second Appeal is disposed off at the stage of the admission with the above observations.
Ordered accordingly.
Sd/-
JUDGE Gss/-