IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 3RD DAY OF DECEMBER, 2019 BEFORE THE HON’BLE MR. JUSTICE K.NATARAJAN REGULAR SECOND APPEAL No.711 of 2011 (INJ) BETWEEN 1. SMT. PUTTANANJAMMA, W/O. BHASKAR M.H., AGED ABOUT 60 YEARS, 2. HARISHBABU, S/O BHASKAR M.H., AGED ABOUT 43 YEARS, BOTH ARE RESIDING AT 8TH CROSS, SIDDARTHA NAGAR, MALAVALLI TOWN, MANDYA DISTRICT–571 430.
(BY SRI S. RAJASHEKAR, ADVOCATE) AND 1. SMT. GOWRAMMA, W/O. DEVARAJU, AGED ABOUT 58 YEARS, RESIDING AT 2ND CROSS, SIDDARTHA NAGAR, MALAVALLI TOWN, MANDYA DISTRICT – 571 430.
2. ANUSUYA, D/O. BHASKAR M.H., AGED ABOUT 51 YEARS, PRESENTLY ... APPELLANTS RESIDENT OF No.17/98, 100 FEET ROAD, SUBHASHNAGAR, MANDYA–571 401.
(BY SRI G.S. BHAT, ADVOCATE) ... RESPONDENTS THIS REGULAR SECOND APPEAL IS FILED UNDER SECTION 100 OF THE CODE OF CIVIL PROCEDURE, 1908, AGAINST THE JUDGMENT AND DECREE DATED 03.01.2011 PASSED IN R.A.No.85 of 2006 ON THE FILE OF THE SENIOR CIVIL JUDGE AND JMFC., MALAVALLI, ALLOWING THE APPEAL AND SETTING ASIDE THE JUDGMENT AND DECREE DATED 17.12.2005 PASSED IN O.S.No.173 of 2000 ON THE FILE OF THE CIVIL JUDGE (JR. DN.) MALAVALLI.
THIS REGULAR SECOND APPEAL COMING ON FOR FURTHER HEARING, THIS DAY, THE COURT DELIVERED THE FOLLOWING:
JUDGMENT This appeal is filed by the appellants/defendant Nos.1 and 3 being aggrieved by the judgment and decree passed by the Senior Civil Judge and JMFC, Malavalli, in R.A.No.85/2006 dated 03.01.2011 (herein after referred to as First Appellate Court) for having allowed the appeal by setting aside the dismissal of the suit passed by the Civil Judge, (Junior Division), Malavalli, in O.S.No.173/2000 dated 17.12.2005 (herein after referred to as Trial Court).
2. Heard the arguments of the learned counsel for the appellants 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 filed the suit for relief of permanent injunction restraining the defendants from interfering in peaceful possession and enjoyment of the suit schedule property i.e., land measuring 61 aeirs (61 guntas) in Sy.No.649/1 situated at Marehalli Village, Malavalli Taluk and the defendants trying to interfere with the portion of the property and it is claimed that the plaintiff was in possession of suit schedule property as per khatha under M.R.No.160/1998-99. Hence, suit filed against the defendant for injunction.
5. Pursuant to the notice issued by the trial Court, defendants appeared before Court and filed written statement by denying the averments of the plaint and contended that the property in Sy.No.649 measuring 2 acres 27 guntas was owned by Deva @ Devaraguddayya and out of 2 acres 27 guntas, a portion of the land measuring 1.27 guntas on the Southern side was sold in favour of Chikkanna by sale deed dated 12.03.1945 for a sum of Rs.365/- since then, the said Chikkanna enjoyed the property. After the sale, Sy.No.649 was measured and pucca phoded. A new number was given as Sy.No.649/1 for the land measuring 1 acre 11 guntas kharab was assigned to Deva @ Devaraguddayya and Sy.No.649/2 for the land measuring 1 acre 27 guntas + 19 guntas kharab was assigned to the Chikkanna and there was no Kharab assigned in respect of Deva @ Devaraguddayya. Despite by mistake 10 guntas kharab was shown in Akharabund and in the RTC 11 guntas was shown. However, in respect of the said order and entry, a Revision Petition came to be filed before the Deputy Commissioner in R.Mis.144/2000. A stay was also obtained and the plaintiff was not satisfied with the 10 guntas of kharab but has claimed 40 guntas of hynu land and 21 guntas kharab land. In all, 61 guntas as suit schedule property and seeking for an order of injunction. From the inception of R.T.C. i.e., from 1960- 1970 passing to M.R.No.160/98 dated 28.06.2000 the entry in the R.T.C. was only 51 guntas. Whereas, after the order had changed at 61 guntas which is without any basis. The plaintiff by relying upon the unlawful entries in the revenue records and trying to grab the land. Hence, prays for dismissal of the suit.
6. To substantiate the case, the plaintiff examined herself as PW.1 and two more witnesses as PWs.2 and 3 and got marked 9 documents as per Exs.P.1 to P.9. On behalf of defendants, defendant No.2 examined herself as DW.1 and two more witnesses as DWs .2 and 3 apart from making 15 documents as per Exs.D.1 to D.15.
7. Based upon the rival pleadings, the Trial Court framed the following issues for its consideration:
“1. Does the plaintiff prove the possession?
2. Does the plaintiff prove the interference of the defendant?
3. Does the plaintiff entitled to any relief?
4. What order or decree?”
The Trial Court answered issue Nos.1 to 3 in the negative and ultimately dismissed the suit vide judgment dated 17.12.2005. Assailing the dismissal of the suit, the plaintiff filed an appeal before the First Appellate Court in RA No.85/2006. After hearing the arguments, the First Appellate Court framed the following three points for consideration;
“1. Whether the findings of the trial court that, the plaintiff has not established her possession over the suit property and defendants never interfered with her possession is sustainable?
2. Whether the interference with the judgment of Trial court is necessary?
3. What order or decree?”
The First Appellate Court answered point Nos.1 and 2 in the affirmative in favour of the plaintiff and allowed the appeal and granted decree in favour of the plaintiff. Assailing the same, the defendant is before this Court by way of second appeal.
8. Learned counsel for the appellants/defendant Nos.1 and 3 strenuously contended that the First Appellate Court committed error in accepting the evidence of PWs.1 to 3, even though the registered sale deed was produced by the defendants as per Ex.D.1, which clearly shows that the Southern portion of 1 acre 27 guntas of the land was sold to the grandfather of the defendants namely, Chikkanna and retained only 1 acre. Absolutely there is no mention about the Kharab land in the sale deed as well as no documents were produced by the plaintiff before the Trial Court to show that the Kharab land is situated on the Southern side. Even if the Kharab land is situated on the Western side, the plaintiff alone cannot claim right over the Kharab land and the First Appellate Court has misread the evidence of the parties led before the Trial Court and therefore, prayed for setting aside the judgment of the First Appellate Court and to confirm the judgment of the Trial Court.
9. Per contra, learned counsel for the respondent/plaintiff supported the judgment of the First Appellate Court and contended that though there is no Kharab land shown in the sale deed at Ex.D.1, but it indicates that Kharab land has been retained by the predecessor of the plaintiff while selling the land and the Kharab land was cultivated by the plaintiff’s ancestors and continued to be in possession. The same was confirmed by the revenue authorities in MR No.168/98-99. Even in the cross-examination, there was only fine land, but no Kharab has been purchased by the predecessor in title of the defendants and therefore, the admission of the defendants clearly shows that only cultivable land has been purchased, but not the Kharab land. Such being the case, the question of claiming Kharab land, which is in possession of the plaintiff cannot be acceptable. Therefore, he prayed for dismissal of the appeal on the ground that there is no substantial question of law is involved in this appeal.
10. Upon hearing the argument of learned counsel on both side and on perusal of the record, the substantial question of law that arises for consideration of this Court is as follows:
“ Whether the Lower Appellate Court is justified in granting the relief of injunction in respect of the additional 21 guntas of land in Sy.No.649, in the absence of title deeds in support of the case of the Respondent No.1?
11. On perusal of the record, it is an admitted fact that the land in Sy.No.649 of Marehalli village, Malavalli Taluk, consists of 2 acres 27 guntas of land. As per the case of the defendants, that on 12.03.1945, Chikkanna the grandfather of the defendants purchased a portion of the land measuring 1 acre 27 guntas on the Southern side of Sy.No.649 and the Northern portion of land has been retained by the vendor Deva @ Devaraguddayya. Whereas the defendants contended that the plaintiff relied upon the mutation entry in MR No.160/98-99, which is under challenge before the Deputy Commissioner in R.Mis.No.144/2000. The clear case of the plaintiff is that she is the owner of the land in Sy.No.649/1 measuring 61 guntas. In order to prove the ownership of 61 guntas, the plaintiff did not produce any title deeds. Admittedly, the defendants produced Ex.D.1, which reflects the total measurement of 2 acres 27 guntas of land in Sy.No.649. As per the title deed, a portion of 1 acre 27 guntas has been sold to Chikkanna and Deva @ Devaraguddayya retained only 1 acre of land. The sale was effected in the year 1945 and even after selling the said property, the mutation entries were not entered either in the name of the plaintiff or in the name of the ancestors of the defendants. But in the year 1998, the plaintiff got entered as holder of 61 guntas of land. It is also brought to the notice of this Court by learned counsel for the appellants the order passed by the Deputy Commissioner, Mandya District in R.Mis.No.144/2000, which is pleaded by the defendants in the written statement. As per the said document, the Deputy Commissioner set aside the mutation entry in MR No.160/98-99, which is the document of the plaintiff filed before the Trial Court. Based upon the said document, the First Appellate Court decreed the suit. Now, the very same entry with regard to the ownership claimed by the plaintiff is set aside by the revenue authorities under the Land Revenue Act.
12. Be that as it may. On perusal of the document, it is admitted by both parties that the predecessor of the plaintiff retained only 1 acre of land and sold the land measuring 1 acre 27 guntas. Such being the case, the question of increasing more than 1 acre of land with the plaintiff does not arise. Likewise, 1 acre 27 guntas cannot be increased more that 1 acre 27 guntas, other than the land which was retained and sold. The only dispute between the parties is in respect of the Kharab land situated in Sy.No.649 of the land. The plaintiff failed to produce any document to show that the Kharab land is situated on the Northern side of the land, which was retained by Deva @ Devaraguddayya. However, it is also admitted by the defendants in the cross-examination that Chikkanna purchased only 1 acre 27 guntas, which is a fine land but not Kharab land. Even on perusal of Ex.P.1 and other documents, nowhere it depicts that the Kharab land is situated on the Southern portion of land which was purchased by defendants’ ancestor. However, learned counsel for the appellants claimed that the Kharab land is on the Southern side of the property.
13. Learned counsel for the respondent/plaintiff contended that as per the village map, the Kharab land is situated on the Western side of the property. But on perusal Village Map, it goes to show that the land in Sy.No.649 has been pointed out that on the Western side, there is a oni; on the Eastern side, the land in Sy.Nos.642 and 650. On the Southern side, the land in Sy.No.648 and on the Northern side, nothing has been mentioned. This boundaries in the map corroborates with the boundaries mentioned in the sale deed produced by the defendants. Even both the counsel for the plaintiff and defendants are not able to establish before the Court as to whether the Kharab land is situated on the Southern side or on the Northern side. As per the sale deed Ex.D.1, on the Western side oni, mananahalli kere and even in the suit, the plaintiff stated that the Northern side is retained. Such being the case, the Kharab land must be situated on the Southern side or on the Northern side. The village map shows that there is some bifurcation of land in Sy.No.649 on the Southern side, through which the defendants claim as Kharab land on the Southern side. Even though the sale deed does not reflect the Kharab land situated on the Southern side of the property purchased by Chikkanna, however, the plaintiff is required to prove possession and enjoyment of the suit schedule property by way of producing title deed or any other document to show that she is in possession of the property. The main case of the plaintiff rests on the Ex.P.1, the revenue entries MR No.100/98-99. The same was set aside by the Deputy Commissioner. Thereby, the plaintiff is not able to prove title or possession of the suit schedule property of 61 guntas. Though the defendants claimed 30 guntas Kharab land on the Southern side and as per the RTC produced by the defendants it shows that the plaintiff is in possession of 51 guntas of land i.e., 1 acre + 11 guntas Kharab land as per Exs.D.6 and D.7.
14. The documents of the defendants goes against the plaintiff’s case for claiming 61 guntas of land. From the evidence of the plaintiff, the facts show that the plaintiff was in possession of 61 guntas of land as on the date of filing of the suit. Such being the case, the Trial Court rightly dismissed the suit, whereas the First Appellate Court committed error in accepting the evidence of the plaintiff based upon the mutation entry, which is already stayed by the Deputy Commissioner by allowing the revision of the defendants, which was challenged before this Court by filing WP No.9646/2011. The said writ petition was dismissed vide order dated 8.6.2011. In view of setting aside of the entry, the plaintiff has no case before the Trial Court to establish that the plaintiff is in possession of the land measuring 61 guntas. Therefore, the judgment of the First Appellate Court decreeing the suit requires to be set aside, which is against the evidence on record. However, looking the case of both parties, the parties are required to appear before the revenue authorities to verify whether the Kharab land is situated on the Western side of the property, if the Kharab is situated on the western side then both the plaintiff and defendants will get proportionate to their extent of land and if the Kharab land is found on the Northern side, the plaintiff will get entire Kharab land in her favour. If Kharab land is situated on the Southern side, the defendants will get the entire portion of Kharab land. Therefore, the parties are required to approach the revenue authorities for surveying the land in question taking into consideration the boundaries mentioned in the sale deed.
15. In view of the aforesaid observations, the appeal filed by the appellants/defendant Nos.1 and 3 is allowed. The judgment of the First Appellate Court dated 03.01.2011 is set aside. The suit of the plaintiff is dismissed by confirming the judgment passed by the Trial Court, dated 17.12.2005.
SD/- JUDGE mv