IN THE HIGH COURT OF KARNATAKA AT BENGALURU ON THE 24TH DAY OF FEBRUARY 2015 BEFORE THE HON’BLE MR.JUSTICE RAVI MALIMATH REGULAR SECOND APPEAL NO.1281 OF 2011(INJ) BETWEEN:
Sri Dharmegowda Aged about 48 years S/o K.Nanjappa Residing at Kondapura Cross, Kunigal Main Road, Gulur Hobli, Tumakuru Taluk, Pin Code: 572 118. …APPELLANT (By Sri M.S.Varadaraju, Advocate) AND:
Smt.Savitha Aged about 62 years W/o Shamilal Agarwal, Residing at Richmond Tower, Richmond Circle, Bengaluru, Pin Code: 560 027. …RESPONDENT (By Smt.Leelavathi H.T. Advocate for Sri B.Srinivas, Advocate) *** This RSA is filed under Section 100 of CPC against the judgment and decree dated 21.4.2011 passed in R.A.No.392/2009 on the file of the II Additional District and Sessions Judge, Tumakuru, dismissing the appeal filed against the judgment and decree dated 03.08.2007 passed in O.S.No.448/2000 on the file of the I Addl.Civil Judge (Jr.Dn.) & JMFC., Tumakuru.
This RSA coming on for hearing this day, the court delivered the following:-
JUDGMENT The case of the plaintiff is that he is the absolute owner in peaceful possession and enjoyment of the suit schedule property. He received the same by virtue of a panchayath parikath dated 3- 9-1982 effected between the K.Nanjappa and his brother Shivashankar. The plaintiff is the son of Nanjappa. All the revenue records stand in his name. The plaintiff has been raising ragi, huruli etc., in the suit schedule property. The defendant is a stranger to the suit schedule property. She has no manner of right, title or interest over the suit schedule property. Inspite of that the defendant by creating certain documents has been making hectic efforts to interfere with the plaintiff’s possession. Hence, the instant suit was filed seeking for a decree of permanent injunction to restrain the defendant from interfering with the plaintiff’s possession.
2. On service of summons, the defendant entered appearance and denied the said averments. She contended that the plaintiff is not the owner or in possession of the suit schedule property. That the Panchayath Parikath is not the valid document. It is not a registered document. No right flows from the said document. That the suit schedule property originally was the property of one Mohammed Peer Sab Nagaraj and his sons. They sold the property to plaintiff’s father Nanjappa under registered sale deed dated 4-12-1980. Nanjappa in turn sold the property to defendant under the registered sale deed dated 27-10- 1986. The defendant sought for change of khata in his name.
The Tahsildar, Tumakuru, forfeited the said land on the ground that the defendant has violated Section 79 of the Karnataka Land Reforms Act. Therefore, the defendant filed an appeal before the Assistant Commissioner, who held that the defendant has not violated any of the provisions of Section 79 of the Karnataka Land Reforms Act and directed the Tahasildar, Tumakuruu to effect his name. Hence, he prays for dismissal of the suit.
3. Based on the above pleadings the trial Court framed the following issues:-
“1. Whether the plaintiff proves that he is in possession and enjoyment of suit schedule property as alleged at para-2 of the plaint?
2. Whether the plaintiff further proves that defendant has interfered with his possession and enjoyment of suit schedule property as alleged at para-4 of the plaint?
3. Whether the plaintiff further proves that the cause of action arose for the suit as alleged at para-5 of the plaint?
4. Whether the plaintiff further proves that he is entitled to the relief as sought for?
5. What order or decree?"
4. The plaintiff examined himself and two other witnesses and marked 12 documents. The defendant himself was examined as D.W.1 and 9 documents were examined and 9 documents were produced. All the issues were held in the negative. The suit of the plaintiff was dismissed. Aggrieved by the same, the plaintiff preferred an appeal which was rejected. Hence, the present second appeal by the plaintiff.
5. By the order dated 21-6-2011 the appeal was admitted to consider the following substantial questions of law:-
“Whether both the Courts below are legally correct in dismissing the suit of plaintiff on the ground, that his possession is not legal, without examining the question whether he in settled possession or not ?”
6. The learned counsel for the appellant-plaintiff contends that both the Courts below committed an error in misreading the material evidence on record. That Ex.P-1 is an unregistered Panchayath Palupatti. It would indicate that the property on division fell to the share of the plaintiff in the year 1982. Eversince then the plaintiff is in peaceful possession of the same. That the document itself is sufficient to show that the plaintiff is in uninterrupted possession since the year 1982. Merely because, on division of properties the Panchayth parikath has not been registered, does not disentitle the plaintiff from claiming his possession. The plea of the defendant for having purchased the suit schedule property in terms of Ex.D-1 was wrongly considered by the Courts below. That Ex.D-1 was executed in the year 1986. That the vendor did not have any right or title to execute the sale deed since the property had fallen to the share of the plaintiff. Hence, both the Courts below committed an error in dismissing the case of the plaintiff.
7. On the other hand, Smt.Leelavathi H.T, the learned counsel for the respondent defends the impugned order.
8. Heard learned counsels and examined the records.
The reasoning assigned by the trial Court firstly is to the effect that in terms of Ex.P-5 to 7 which are the RTC extracts of the suit schedule property for the year 1994-95 up-to 2000-01 would disclose that the plaintiff is in possession and enjoyment of 1 acre 10 guntas of land. Ex.P-8 the encumbrance certificate discloses that there was no encumbrance in respect of the suit schedule property for the period from 1-4-1986 to 5-4-1998. Ex.P-9 is the copy of the tax paid receipt. Ex.P-11 is the voters identity card of the plaintiff and Ex.P-12 is the Ration card of the plaintiff. On the other hand Ex.D-1 the registered sale deed dated 20-7-1986 discloses that the plaintiff’s father P.Nanjappa sold 2 acres of land in Sy.No.7 of Hosur village in favour of the defendant. That the document would disclose he sold the suit schedule property for his personal and family use in order to satisfy his liabilities. That he has put the defendant in possession of the suit schedule property. Ex.D-2 is the order of the Assistant Commissioner, Tumakuru Sub-Division, Tumakuru, which would disclose that the defendant has purchased the suit schedule property without violating the provisions of Section 79(A) & (B) of the Karnataka Land Reforms Act. Ex.D-3 is the RTC Extract for the year 2006-07. It shows that he is in possession and enjoyment of 1 acre 30 guntas of land. Hence, the trial Court was of the view that since the validity of the sale deed has been upheld by the Assistant Commissioner, Tumakur Sub-Division, Tumakuru, the same requires to be accepted.
9. The validity of a sale deed cannot be upheld by the Assistant Commissioner which is beyond his jurisdiction. It is the trial Court alone that could record a finding as to the validity or otherwise of a sale deed. Therefore the trial Court by holding that since the Assistant Commissioner has ratified the sale deed the same requires to be accepted is the error committed by the trial Court.
10. The material relied by the trial Court is with reference to the title of the property. The suit is not one for declaration. It is one for bare injunction. In terms whereby the trial Court has also recorded a finding based on Exs.P-5 to 7. The RTC entries would show that the plaintiff is in possession of the suit schedule property since 1993 up-to 2000-01. He has entered into the property in terms of Ex.P-1 in the year 1982. The sale deed of the defendant has been executed in terms of Ex.D-1 in the year 1986. It is a subsequent document. The suit has been filed in the year 2000. As on the date of the suit there is substantial material to show that the plaintiff is in possession of the suit schedule property. The trial Court was at a tangent to hold with regard to the title to the property, which is not even the subject matter of the suit. Consequently, the substantial question of law is answered by holding that both the courts below committed an error in dismissing the suit by the plaintiff without examining as to whether the plaintiff is in settled possession or not. In view of the aforesaid reasons, the appeal requires to be allowed.
11. Consequently, the Judgment & decree dated 3-8- 2007 passed by the I Additional Civil Judge(Junior Division) & JMFC, Tumakuru in O.S.No.448/2000 and the Judgment & decree dated 21-4-2011 passed in R.A. No.392/2009 by the II Additional District & Sessions Judge, Tumakuru are set aside. The suit of the plaintiff is decreed.
No Costs.
Sd/- JUDGE Rsk/-