IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 27TH DAY OF AUGUST 2019 BEFORE The Hon’ble Mr. Justice B. M. Shyam Prasad Regular Second Appeal No.815 OF 2016 BETWEEN:
1. SHEKHAR SHETTY, AGED ABOUT 48 YEARS, SON-IN-LAW OF LATE SRI BHIJA SHETTY.
2. SMT. GULABHI SHEDTHI, AGED ABOUT 77 YEARS, W/O LATE SRI BHOJA SHETTY.
3. SMT. SUJATHA SHEDTHI, AGED ABOUT 47 YEARS, D/O LATE SRI BHOJA SHETTY.
4. SRI SUKUMAR SHETTY, AGED ABOUT 42 YEARS, S/O LATE SRI BHOJA SHETTY.
5. SRI SUNIL SHETTY, AGED ABOUT 38 YEARS, S/O LATE SRI BHOJA SHETTY.
ALL ARE ADULTS, NOS.1 TO 5 ARE RESIDING AT: KELLAR, NANDIKOOR VILLAGE, PALIMAR POST – UDUPI TALUK AND DISTRICT – 574 111. (BY SRI VINOD GOWDA, ADVOCATE) ... APPELLANTS AND:
1. SRI SANJEEVA SHETTY, AGED ABOUT 77 YEARS, S/O LATE SRI PUTTU SHETTY, R.O. “TEHNKKUMANE”, ADVE, NANDIKOOR VILLAGE AND POST – 574 111 UDUPI TALUK AND DISTRICT.
2. SMT. SUSHEELA HENGSU, AGED ABOUT 70 YEARS, D/O. NARSI HANGSU, R/O HEJAMADI VILLAGE AND POST, UDUPI TALUK, UDUPI DISTRICT – 574 103.
3. SMT. SARASU HENGSU, AGED ABOUT 60 YEARS, D/O. NARSI HENGSU, R/O. HEJAMADI VILLAGE AND POST, UDUPI TALUK, UDUPI DISTRICT – 574 103.
... RESPONDENTS (BY SIR K. CHANDRANANTH ARIGA, ADVOCATE FOR R-1; V/O DATED 15/02/2019, APPEAL DISMISSED AS AGAINST R-2, R-3) THIS RSA IS FILED UNDER SECTION 100 OF CPC, AGAINST THE JUDGMENT AND DECREE DATED 30.11.2015 PASSED IN R.A. NO.19/2008 ON THE FILE OF THE PRINCIPAL SENIOR CIVIL JUDGE, UDUPI, DISMISSING THE APPEAL AND CONFIRMING THE JUDGMENT AND DECREE DATED 21.01.2008 PASSED IN O.S. NO.115/2002 ON THE FILE OF THE PRINCIPAL CIVIL JUDGE (JR. DN.) UDUPI.
THIS RSA COMING ON FOR ADMISSION THIS DAY, THE COURT DELIVERED THE FOLLOWING:
J U D G M E N T Heard the learned counsel for the appellants, and the learned counsel for the respondent No.1. The appeal as against the other respondents in R.A.No.19/2008 is dismissed.
2. Perused the judgments of the Courts below.
3. This appeal is filed by the defendant Nos.1 to 5 in O.S.No.115/2005 on the file of the Principal Civil Judge (Sr. Dn.) Udupi. The suit in O.S.No.115/2002 is for permanent injunction restraining the defendants/appellants, and two other defendants from interfering with the 1st respondent’s possession of the of the agricultural land (suit schedule property). This suit is decreed by the trial Court, and the appeal filed by the defendants/appellants in R.A.No.19/2008 on the file of the Principal Senior Civil Judge, Udupi, is dismissed. As such, the present appeal.
4. It is undisputed that Sri. Bhoja Shetty was the owner of the total extent of 3 acres 67 cents in Sy. No.87/1 of Nadikoor Village, Udupi Taluk, and he has transferred 1 acre 76 cents of this land in favour of the respondent Nos. 2 and 3 in the year 1976. There is no dispute that the title and possession of this extent of 1 acre 76 cents is with these respondents. However, the dispute is because respondent No.1/plaintiff has asserted that Sri. Bhoja Shetty executed and registered a permanent lease deed dated 11.01.1974 granting leasehold rights for the remaining extent of 1 acre 91 cents in Sy No. 87/1 (suit schedule property) in his favour, and that he has been in possession of this extent. It is also asserted by respondent No.1 / plaintiff that he has filed an application in Form - 7A of the Karnataka Land Reforms Act, 1961. The learned counsel for the parties submit that the proceedings pursuant to such application in Form – 7A is still pending consideration before the Competent Officer.
5. The appellants contend that Sri. Bhoja Shetty has not executed the lease deed dated 11.01.1974, and in any event, it was not acted upon. The appellants being the legal representatives of Sri. Bhoja Shetty have continued in possession of the aforesaid extent of 1 acre 91 cents. This is borne out by the RTC which is marked as Ex.P.1.
6. The Courts below in the light of the evidence on record, and considering that the respondent/plaintiff was claiming possession of the aforesaid extent of 1 acre 91 cents under a registered deed and asserting that the application in Form – 7A dated 24.12.1998 is filed by the respondent/plaintiff seeking grant of occupancy rights have decreed the suit granting permanent injunction as prayed for.
7. It must be mentioned that the appellate Court while reaffirming the findings of the trial Court also concluded because it is settled that cause of action for permanent injunction could be founded on reasonable apprehension of interference and therefore, the suit could not have been dismissed because the respondent/plaintiff had admitted in his cross-examination that the appellants / defendants had not trespassed into the suit schedule properties and cut the trees.
8. The learned counsel for the appellants submits that the Courts below have failed to consider that the purported lease deed dated 11.01.1974 was not mentioned in the encumbrance certificate, and as such, there was a serious doubt about the execution and registration of the lease deed. Further, the appellants are entitled for the benefit of presumptive evidence because the RTC show that the appellants were in possession of the property of the aforesaid land measuring 1 acre 91 cents. The learned counsel for the appellants also submitted that in the light of the clear admission by respondent No.1 / plaintiff that the appellants / defendants had neither trespassed nor cut the standing trees, the plaintiff had failed to establish the cause of action for the suit.
9. The registered lease deed dated 11.01.1974 is marked as Ex.P.1, and merely because it is not reflected in one of the Encumbrance Certificates obtained by the appellants, the registered lease deed cannot be ignored. The Encumbrance Certificates are issued at the instance of the applicants, and merely because registered document is not reflected in one encumbrance certificate, the existence of the registered deed cannot be doubted. As submitted by the learned counsel for the appellants himself, entries in revenue records have only presumptive value and they will have to yield when other material evidence speaks contrarily. The registered lease deed undisputedly speaks of grant of leasehold rights in favour of the appellants, and it is undisputed, that the lease deed speaks of delivery of possession of the subject property. If the lease deed is not doubted, the presumptive value of the entries in RTC is eclipsed. Therefore, there cannot be any greater significance to the revenue entries. Further, it is undisputed that respondent No.1/plaintiff has filed the application in Form – 7A under the provisions of the Karnataka Land Reforms Act and the enquiry in this regard is still pending consideration. A conjoint reading of the terms of the lease deed and the fact that Form – 7A is filed, would in any event dislodge the presumptive value of the revenue entries. As such, no substantial question of law arises for consideration in this appeal.
10. However, while dismissing this appeal, it must be observed that the Prescribed Authority holding the enquiry on Form-7A filed by the plaintiff/respondent No.1, shall decide on the merits of the application independent of any finding or observation in this judgment of this Court or the Courts below. Accordingly, the appeal is disposed of.
Sd/- Judge VP