IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 25TH DAY OF NOVEMBER, 2019 BEFORE THE HON’BLE MR. JUSTICE SACHIN SHANKAR MAGADUM REGULAR SECOND APPEAL No.1671/2015 BETWEEN:
Sarai Krishnappa (Since dead by LRs) 1. Konamma w/o late Sarai Krishnappa Aged about 50 years.
2. Sriramappa s/o late Sarai Krishnappa Aged about 45 years.
3. Amaravathi d/o late Sarai krishnappa w/o Srinivasappa aged about 42 years.
4. Ashwathamma d/o late Sarai Krishnappa w/o Narayanaswamy Aged about 39 years.
5. M K Babu s/o late Sarai Krishnappa Aged about 38 years.
6. M K Manjunatha s/o late Sarai Krishnappa Aged about 35 years.
Appellants 1, 2, 5 and 6 are residents of Muduvathi village Vokkaleri Hobli, Kolar Taluk-563101.
Appellant 3 is the resident of Nukkanahalli village Holur Hobli, Kolar Taluk-563101 & also residing at Muduvathi village Vokkaleri Hobli, Kolar Taluk-563101.
Appellant 4 is the resident of Settiganahalli village, Vokkaleri Hobli, Kolar Taluk – 563101 & also residing at Muduvathi Village, Vikkaleri Hobli, Kolar Taluk – 563 101. ..Appellants (By Mrs.Rakshitha V N for Sri K Raghavendra Rao, Advocates) AND:
The Tahsildar Kolar Taluk Kolar – 563 101. ..Respondent This RSA is filed under Section 100 of the Code of Civil Procedure against the judgment and decree dated 24.6.2015 passed in R.A No.109/2013 on the file of III Addl. Senior Civil Judge, Kolar, dismissing the appeal and confirming the judgment and decree dated 8.3.2013 passed in OS No.335/2006 on the file of the Prl. Civil Judge, Kolar.
This RSA coming on for admission this day, the Court delivered the following:
JUDGMENT This second appeal is by the plaintiff questioning correctness and legality of the judgment and decree dated 24.6.2015 passed in R.A No.109/2013 on the file of III Addl. Senior Civil Judge, Kolar, dismissing the appeal and confirming the judgment and decree dated 8.3.2013 passed in OS No.335/2006 on the file of the Prl. Civil Judge, Kolar.
2. In order to avoid confusion and overlapping, the parties are referred in accordance with their ranking and status as held before the Trial Court.
3. The facts leading to this case are as under:
4. The plaintiff filed bare suit for injunction against the defendants in OS No.335/2006 on the file of the Prl. Civil Judge, Kolar.
5. The case of the plaintiff before the Trial Court is that he is in possession of the suit schedule property in Sy.No.156 measuring east-west 22 feet and north-south 18 feet situated at Gramatana, Muduvathi village, Vokkaleri Hobli, Kolar Taluk. The plaintiff averred in the plaint that he and his family members have been in un-authorized occupation of suit schedule property for the last several years. The contention of the plaintiff is that the Muduvathi Grama Panchayath granted the suit schedule property after carrying spot inspection and following the procedure by passing resolution to that effect by the competent Authority. The plaintiff further averred in the plaint that his name was entered in the Gramapanchayath records pertaining to suit schedule property and paid tax to the Gramapanchayath. The plaintiff further averred in the plaint that the defendants have no manner of right, title and interest or possession over the suit schedule property. It is a specific case of the plaintiff that the suit schedule property is not a Gomal land and it does not come within the jurisdiction of defendant No.7/Tahsildar. In that view of the matter, the 7th defendant has no power and jurisdiction to evict the plaintiff. The grievance of the plaintiff is that the 7th defendant initiated action against the plaintiff at the instigation of defendants No.1 to 6. The defendants No.1 to 6 tried to interfere with the possession of the plaintiff on 25.7.2006, 29.7.2006 and 1.8.2006. The defendants No.1 to 6 have also attempted to destroy the suit schedule property. The plaintiff has further averred in the plaint that the defendants No.1 to 6 instigated the 7th defendant to initiate action against the plaintiff.
Based on the said facts, the plaintiff filed bare suit for bare injunction.
6. The defendants No.1 to 6 on receipt of summons, filed written statement and stoutly denied the entire averments made in the plaint. The defendants specifically contended in the written statement that the suit schedule property is a part and parcel of Sy.No.156 of Muduvathi village and the said agricultural land is a gomal land and it is not at all owned by the Muduvathi Gramapanchayath. In that view of the matter, the Panchayath has no authority to make any grant in respect of Sy. No.156.
7. The present respondent/ defendant No.7 also contended in the written statement that the Government has already initiated proceedings for evicting the plaintiff. A specific contention is taken in the written statement that the so called grant made in favour of the plaintiff is already cancelled in G.P.Appeal No.11/06-07 dated 17.1.2007. Based on the above set of facts, the 7th defendant sought for dismissal of the suit.
8. The Trial Court based on rival contentions of the parties framed the following issues:
1) Whether the plaintiff proves that he is in possession & enjoyment of the schedule property?
2) Whether the plaintiff further proves that the defendants are interfering with the possession and enjoyment of the suit schedule property?
3) Whether the plaintiff is entitled for the relief as sought for?
4) What order or decree?
9. The Trial Court based on the rival contentions formulated issues and the plaintiff in support of his contention examined himself as PW.1 and examined two witnesses as PW.2 and PW.3. To corroborate the pleadings and oral evidence, produced documentary evidence vide Exs.P-1 to P-13. Per contra, the defendants in support of their contentions, examined DWs.1 and 2 and relied on the sketch which was marked as Ex.D1.
10. The Trial Court on appreciation of the oral and documentary evidence adduced by the parties, answered issue No.1 in the affirmative and issue Nos.2 and 3 partly in the affirmative. The Trial Court recorded a finding that the appellant/plaintiff is an unauthorized occupant and further, having perused Ex.P-6 which is notice issued by the present respondent – Tahsildar, proceeded to hold that on the strength of Ex.P-6 – notice, the defendant Nos.1 to 6 have no authority to interfere with the possession of the plaintiff. The Trial Court further proceeded to hold that if at all the suit property which is part of Sy.No.156 is a gomal land, then the Authority has every right to proceed under the Karnataka Land Revenue Act, 1964 and take appropriate action. In this background, the Trial Court having assessed the evidence on record, found that the defendant Nos.1 to 6 are trying to interfere with the appellant’s possession over the suit property on the ground that the suit property is part of gomal land and the Trial Court rightly decreed the suit restraining the defendant Nos.1 to 6 from interfering with the appellant’s peaceful possession and enjoyment over the suit property. The Trial Court dismissed the suit insofar as the present respondent is concerned who was arrayed as defendant No.7 before the Trial Court.
11. The appellant/plaintiff being aggrieved by the dismissal of the suit insofar as the present respondent/defendant No.7 is concerned, preferred regular appeal in R.A.No.109/2013.
12. The Appellate Court on re-appreciation of evidence on record, concurred with the reasoning assigned by the Trial Court. The Appellate Court while referring the document placed by the appellant/plaintiff held that it is for the appellant/plaintiff to produce the documents to show that the suit property is situated within the Gramatana and that it belongs to Grama Panchayath and further, it is for the appellant/plaintiff to establish that the property comes within the jurisdiction of Grama Panchayath and present respondent/Tahsildar has no jurisdiction to evict the appellant. In absence of all this material documents, the Appellate Court was of the view that the notice issued by the present respondent as per Ex.P-6 is in accordance with law. The Appellate Court having heard both the parties, proceeded to dismiss the appeal.
13. The appellant/plaintiff being aggrieved by the judgment and decree of the Courts below is before this Court.
14. Learned counsel for the appellants would vehemently argue and contend that the appellant/plaintiff is in settled possession over the suit schedule property and as such, he is entitled for injunction against the respondent also. This contention is untenable. The cardinal principle in dealing with the discretionary relief of perpetual injunction is more or less settled. The plaintiff while asserting his possessory right is required to prove not only his possession over the suit property but is also required to prove and establish the second ingredient i.e., interference by the defendant. In the present case on hand, there is absolutely no material on record to indicate that the present respondent who is arrayed as defendant No.7 has tried to interfere or dispossess the appellant without having recourse to due process of law. It appears the appellant/plaintiff is trying to make out a case that the issuance of notice as per Ex.P-6 amounts to interference. If that is so, then this Court is of the view that such apprehension by the plaintiff is too far stretched. The said action of the respondent/defendant No.7 is in terms of the provisions of Karnataka Land Revenue Act, 1964. The said action cannot in legal terms amounts to interference. The appellant/plaintiff by seeking perpetual injunction against the present respondent cannot injunct the authorities from taking action in case of any violation of the provisions of the Karnataka Land Revenue Act, 1964.
15. This Court on going through both the judgments of the Courts below, it is evident that the suit property is part of Sy.No.156 which is notified as a gomal land. The respondent has issued notice to the appellant under Section 94 of the Karnataka Land Revenue Act, 1964. The contention of the appellant/plaintiff that the suit property was granted by the Muduvathi Grama Panchayath cannot be accepted in the light of the documents produced by the present respondent as per Ex.D-1. Even for the sake of argument, if it is accepted that the suit property which is part of Sy.No.156 is vested in the Panchayath, it cannot be an absolute vesting. When the agricultural land has been set apart for a special purpose like grazing, the Grama Panchayath has no authority to meddle with the land which is reserved for specific purpose. Pasturage has to be protected in the larger interest of the village life. There is no provision under the Panchayath Act or Local Boards Act conferring the power on the Panchayath to take eviction proceedings against the unauthorized occupants in respect of gomal lands. Section 94 of the Karnataka Land Revenue Act, 1964 is the only provision providing for eviction of unauthorized occupants of land which has been set apart for specific purpose and hence, the power of eviction has been preserved only to the Revenue Authority constituted under Section 94(3) of the Karnataka Land Revenue Act. The respondent pursuant to the direction by the Deputy Commissioner is required to follow the procedure for eviction and accordingly, notice is issued by invoking the provisions under Section 94 of the Karnataka Land Revenue Act, 1964. The action initiated by the respondent cannot be questioned before the competent Civil Court by filing a bare suit for injunction. Moreover, both the Courts have granted the relief of permanent injunction against the defendant Nos.1 to 6, who on the strength of the notice issued by the respondent were trying to dispossess. Both the Courts have given a protection to the appellant/plaintiff. Hence, the appellant/plaintiff grievances have been met with by the Courts below by granting injunction against the defendant Nos.1 to 6. The dismissal of the suit by the Courts below is perfectly in accordance with law. The material on record does not indicate that the present respondent has tried to take possession contrary to the provisions of the Karnataka Land Revenue Act, 1964 and also the procedure contemplated under the Karnataka Land Revenue Rules, 1966.
16. On examining the entire evidence on record, it is not the case of the plaintiff that the respondent is also trying to high-handedly dispossess the appellant/plaintiff. When the ingredients of interference are missing insofar as the present respondent is concerned, question of granting of decree against the respondent restraining him from interfering with the appellant’s peaceful possession and enjoyment would not arise. Since the element of interference is not established insofar as the present respondent is concerned, both the Courts were justified in dismissing the suit.
17. In the light of the above discussion, the appeal is dismissed. However, the dismissal of the suit would not come in the way of the appellants who are legal representatives of deceased plaintiff in contesting the eviction notice. It is open for the appellants to place all material documents before the Authority in respect of their possessory right.
Bkm/ca Sd/- JUDGE