IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 22ND DAY OF JULY, 2019 BEFORE THE HON’BLE MR. JUSTICE N.K. SUDHINDRARAO R.S.A.No.569/2005 BETWEEN:
M G MARIAPPA S/O GIRIYAPPA AGED ABOUT 60 YEARS R/AT MOTHAHALLY VILLAGE KOTHATHI HOBLI MANDYA TALUK MANDYA DISTRICT – 571 401.
...APPELLANT (BY SRI N SHANKARANARAYANA BHAT, ADVOCATE) AND:
1. SMT.NINGAMMA SINCE DEAD BY HER LRs.
R2 TO R4(a) TO R4(c) ARE TREATED AS LRS OF THE DECEASED R1.
2. SRI M B RAJARATHNAM S/O LATE BOMMAIAH AGED ABOUT 45 YEARS RESIDING AT No.92, WEAVERS COLONY VISWESHWARANAGAR MYSORE – 570 001.
3. SRI M B VIDYADHARA S/O LATE BOMMAIAH AGED ABOUT 43 YEARS MAJOR, R/O QUARTERS GOVERNMENT HOSPITAL VIRAJPET, KODAGU DISTRICT – 571 218.
4. M B BRAHMESHA S/O LATE BOMMAIAH MAJOR, R/O No.1811, 100 FT ROAD, SUBHASHNAGAR MANDYA DEAD BY HIS LRs.
4(a) SMT. S H GIRIJA W/O LATE M B BRAHMESHA AGED ABOUT 36 YEARS TEACHER, GOVT. SCHOOL, KIRAGANDOOR VILLAGE KOTHATHI HOBLI, MANDYA TALUK – 571 401.
4(b) B JANHAVI D/O M B BRAHMESHA AGED ABOUT 9 YEARS 4(c) SRI DHANUSH S/O M B BRAHMESH AGED ABOUT 6 YRS 4(b) & 4(c) ARE MINORS REPRESENTED BY THEIR GUARDIAN SMT. S H GIRIJA.
... RESPONDENTAS (BY SRI K RAGHAVENDRA RAO, ADVOCATE FOR R2, 3, 4(a-c) – ABSENT VIDE COURT ORDER DTD. 09.10.2009 R2, 3 & 4 (a-c) ARE TREATED AS LRs OF DECEASED R-1 R4 (b & c) ARE MINORS, REP. BY R4 (a) ) THIS RSA IS FILED U/S.100 OF CPC AGAINST THE JUDGMENT & DECREE DATED:14.12.2004 PASSED IN R.A.No.26/1997 ON THE FILE OF THE DISTRICT JUDGE, MANDYA, DISMISSING THE APPEAL AND CONFIRMING THE JUDGMENT AND DECREE DATED 13.10.1997 PASSED IN OS.No.35/94 ON THE FILE OF THE PRINCIPAL CIVIL JUDGE (SR. DN.) & JMFC, SRIRANGAPATNA.
THIS RSA COMING ON FOR FINAL HEARING THIS DAY, THE COURT DELIVERED THE FOLLOWING:
JUDGMENT The learned counsel for the appellant present. Learned counsel for the respondents absent. Considering the age and stage of the case, it is taken up for disposal.
This appeal is directed against the judgment and decree dated 14.12.2004 passed in R.A.No.26/ 1997 by the District Judge, Mandya, dismissing the appeal and thereby confirming the judgment and decree dated 13.10.1997 passed in OS No.35/1994 by the Principal Civil Judge (Sr. Dn.) & JMFC, Srirangapatna.
2. In order to avoid confusion and overlapping, the parties hereinafter are referred to with reference to their rankings before the trial court.
3. Originally, O.S.No.35/1994 is filed by the plaintiffs for declaration that they are the owners of the suit properties and for permanent injunction restraining the defendant from interfering with the suit property. It is contended that, suit schedule item No.1 is bearing Sy.No.689 New No.782/A measuring 41 cents situate at Gamanahalli village and the same was granted to one Bommaiah who is the husband of the plaintiff No.1 and father of plaintiffs 2 to 4 on 26.5.1967 and after the death of said Bommaiah on 29.10.1981 plaintiffs are in possession of the same.
4. It is also claimed that item No.2 of the schedule is bearing Sy.No.689, New No.783 measuring 1 hectare 22 heirs situate at Gamanahalli village and it was granted to one Ramalingaiah on 26.5.1967 and he was put in possession of the same. It is stated that they are adjacent to each other and sfter the death of Bommaiah and Ramalingaiah, plaintiffs inherited the same from them and are in possession of the same.
5. Defendant resisted the case of the plaintiffs by filing the written statement denying the averments made by the plaintiffs. It is contended that Sy.No.689 is measuring 600 acres and it is not correct that it was granted to Bommaiah and that the sale of 2 acres by Bommaiah to Neelaiah is contrary to the conditions of the grant and plaintiffs are not entitled to the benefit of the grant and he has not claimed any right over the same.
6. It is further contended that he was in possession of item No.2 of the schedule property and denies that it was granted to Ramalingaiah and the alleged grant is against the Lands Grants Rules and as such he has challenged the same before the Assistant Commissioner, Pandavapura in R.A.No.8/90-91. Since he was in possession plaintiffs have not derived possession of the same.
7. The trial Judge was accommodated with the oral evidence of PWs 1 to 3 and DWs 1 to 3 and documentary evidence of Exs.P1 to P71 and Exs.D1 to D32.
8. The trial Judge on the basis of the pleadings of the parties and materials on record, decreed the suit of the plaintiffs with costs declaring that plaintiffs are the owners of the suit properties and restrained the defendant from interfering with their possession over the suit properties.
9. Aggrieved by the same, defendant preferred an appeal before the .learned District Judge, Mandya, in R.A.No.26/1997 which came to be partly allowed on 16-08-1999 confirming the judgment and decree passed by the learned trial Judge declaring that the plaintiffs are the owners of item No.1 injunction in respect of item No.1 of the suit property viz. bearing Sy.No.689 and so far as item No.2 is concerned, the suit of the plaintiffs stands dismissed.
10. Aggrieved by that, plaintiffs approached this Court in RSA No.806/1999 which came to be allowed on 3-12-2001 and judgment and decree insofar as it relates to dismissal of the suits of the plaintiffs in respect of item No.2 of the property is set aside and matter is remanded to the first appellate Judge, Mandya, with a direction to dispose of the appeal in accordance with law.
11. After the remand, the first Appellate Judge passed the judgment on 14-12-2004 dismissing the appeal with costs. Against which, defendant approached this Court in this second appeal.
12. This Court while admitting the appeal on 04-03-2010 framed the following substantial questions of law:
1. Whether the Courts below are justified in granting a decree for declaration and for permanent injunction in respect of Item No.2 of the suit schedule property under the provisions of Specific Relief Act?
2. Whether Courts below are justified in granting declaratory decree without a prayer being made for possession also by the plaintiffs? And whether the Appellate Court below is justified in rejecting additional evidence?
13. Learned counsel Sri Shankaranarayana Bhat appearing for the defendant/appellant would submit that the defendant in this case is in unauthorized occupation of the second item of the schedule property and is due for getting the grant of occupancy rights over the same. Meanwhile, the plaintiffs started claiming that the land was granted to Ramalingaiah by way of granting occupancy rights considering his possession and enjoyment over the schedule property as unauthorized occupant.
14. Learned counsel also would submit that the defendant/appellant preferred an appeal against the grant of schedule item No.2 to Ramalingaiah before the Court of Assistant Commissioner, Pandavapura in R.A.No.38/94-95 which came to be rejected on 3.12.1996. It was further submitted that being aggrieved by the said order, defendant preferred second appeal before the Deputy Commissioner, Mandya in RA 85/2001 and the same came to be allowed and the matter was remanded to the court of Assistant Commissioner, Pandavapura and the proceedings were conducted before the said court. However, the appeal came to be rejected. Thereafter, he has no further information from the appellant.
15. In the context and circumstance of the case, learned counsel Sri. Shankaranarayana Bhat is fair enough to submit that the grievance of the defendant is in respect of item No.2 of the schedule property and he does not lay his hand on item No.1. In the circumstances of the case, it requires to be clarified that the jurisdiction of the revenue court is not usurped by the Civil Court and vise versa. Insofar as present case is concerned, the rights which are vested in the appellant under the revenue side are always kept open.
16. However, in the present case defence of the defendant is to the effect that he was entitled for occupancy rights as he is an unauthorized occupation. In the circumstances, it is to be seen that as on today the declared grantee even according to the defendant is Ramalingaiah from whom plaintiffs inherited the suit schedule item No.2. However, the same was the subject matter of proceedings stated above. That went against the defendant. Hence, I answer the substantial question of laws accordingly.
16. For the foregoing reasons, the appeal is dismissed. No orders as to costs.
Sd/- JUDGE tsn*