IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 09TH DAY OF JANUARY, 2019 BEFORE THE HON’BLE MR.JUSTICE S.N.SATYANARAYANA REGULAR SECOND APPEAL No.1962 OF 2010 (PAR) BETWEEN:
SRI MUNIRAJU, S/O LATE VENKATARAJU, AGED ABOUT 58 YEARS, RESIDING AT RANGAPURA, TUMAKURU KASABA, TUMAKURU TALUK – 571 103. …APPELLANT (BY SRI H.C.SHIVARAMU, ADVOCATE) AND:
1. B.V.SRINIVASARAJU, S/O LATE T.S.VENKATARAJU DEAD BY LR: SMT.LAKSHMIDEVI, W/O LATE B.V.SRINIVASARAJU, AGED ABOUT 43 YEARS.
2. SRI T.S.VIVEK, S/O LATE B.V.SRINIVASARAJU, AGED ABOUT 20 YEARS.
3. SRI B.V. SIDDARAJU, S/O LATE B.V.SRINIVASARAJU, AGED ABOUT 15 YEARS, MINOR. REPRESENTED BY HIS MOTHER SMT.LAKSHMIDEVI.
ALL ARE RESIDING AT KYATHASANDRA VILLAGE, TUMAKURU KASABA, TUMAKURU TALUK – 571 102. …RESPONDENTS (BY SMT.S.B.LAKSHMI, ADVOCATE) THIS RSA FILED UNDER ORDER XLII (42) RULE 1 R/W SECTION 100 OF CPC., AGAINST THE JUDGMENT AND DECREE DATED 21.12.2009 PASSED IN R.A.NO.303/2009 (OLD NO.95/2007) ON THE FILE OF THE PRESIDING OFFICER, FAST TRACK COURT – II, TUMAKURU, ALLOWING THE APPEAL FILED AGAINST THE JUDGMENT AND DECREE DATED 25.07.2005 PASSED IN O.S.NO.384/2002 ON THE FILE OF THE I ADDITIONAL CIVIL JUDGE (JR.DN.) AND JMFC., TUMAKURU.
THIS APPEAL COMING ON FOR FURTHER ARGUMENTS THIS DAY, THE COURT DELIVERED THE FOLLOWING:
J U D G M E N T This second appeal is by the original plaintiff in O.S.No.384 of 2002 on the file of 1st Additional Civil Judge (Jr.Dn.,) and JMFC, Tumakuru. Admittedly, the said suit was filed by the appellant herein seeking permanent injunction against Respondent No.1 seeking to restrain him from interfering with his alleged peaceful possession and enjoyment of land bearing Sy.No.8 measuring 6 acres 12 guntas as on the date of filing of the suit and that the plaintiff is seeking injunction order only in respect of 3 acres 6 guntas.
2. Though in the body of the plaint, the plaintiff has stated that he is a grantee of 3 acres 6 guntas in Sy.No.8 of Rangapura village, Tumakuru Kasaba, Tumakuru Taluk, towards northern side, the schedule conspicuously does not confine to the northern portion of said survey number. Instead, the schedule appears to be in respect of entire extent of 6 acres 12 guntas in Sy.No.8 of Rangapura Village. It is seen that in the said suit, defendant was shown as B.V.Srinivasaraju, Son of late T.S.Venkataraju. It is stated that the said description of the defendant is incorrect and the said B.V.Srinivasaraju is the son of T.S.Venkatarama Raju as supported by the death certificate produced before the lower appellate court. Though the plaintiff in the trial court, who is appellant in this appeal contend that the summons to the sole defendant in the trial court was served, the same is disputed by the legal representatives of the original defendant in O.S.No.384 of 2002. Admittedly, the said suit came to be disposed of ex-parte granting an order of injunction in favour of the plaintiff who is the appellant herein.
3. Admittedly, the said judgment and decree was against a dead person. Subsequently, the widow of B.V.Srinivasaraju, sole defendant in the original suit along with her two sons, namely, T.S.Vivek and B.V.Siddaraju filed an appeal in R.A.No.303 of 2009 (old No.R.A.No.95 of 2007), out of the appellants therein, the third appellant was a minor as on that day. Wherein it was contended that the plaintiff in the original suit has suppressed the factual position regarding the suit property while filing the suit for injunction against B.V.Srinivasaraju. In the appeal, it was contended that what was granted in favour of plaintiff Muniraju’s father Venkataraju was 3 acres 6 guntas in a proceedings bearing INKLAM 208/1979-80 wherein remaining 3 acres 6 guntas was granted to one Puttashamaiah in the entire extent of 6 acres 12 guntas of Sy.No.8 of Rangapura Village. That the said grant was subject matter of challenge before various authorities including this Court wherein the grant made in favour of plaintiff’s father Venkataraju is confirmed to an extent of 3 acres 6 guntas, so far as the grant made in favour of Puttashamaiah is concerned, it is cancelled and the said land was granted in favour of B.V.Srinivasaraju, husband of Smt.Lakshmidevi and father of T.S.Vivek and B.V.Siddaraju. However, it is seen that the said details with regard to earlier round of litigation and the manner in which out of total extent of 6 acres 12 guntas 3 acres 6 guntas was granted in favour of B.V.Srinivasaraju has not come on record in O.S.No.384/2002, which was decided ex-parte.
4. In the lower appellate court, based on the additional documents, which are produced by appellants No.1 to 3 who are the legal heirs of the original sole defendant, the appeal was allowed and the judgment and decree passed by the trial court with reference to granting of permanent injunction to the plaintiff in the said suit is set aside, which is subject matter of challenge in this appeal before this Court.
5. In this appeal, several documents are produced by both the parties, i.e., plaintiff in the original suit as well as the legal representatives of the sole defendant in the suit wherein it is demonstrated that Sy.No.8 of Rangapura Village consisted in all, 6 acres 12 guntas, which was an inam land. By virtue of Form No.7 filed by various persons, one of them is the father of the plaintiff, namely, Venkataraju who is successful in getting 3 acres 6 guntas. Another person is one Puttashamaiah who got an extent of 3 acres 6 guntas allotted to his name. In this background, it is stated that the sole defendant in the original suit B.V.Srinivasaraju approached this Court in W.P.No.6885 of 1984 which came to be disposed of on 29.07.1986 which was ordered to be treated as an appeal and ordered to be transferred to Land Reforms Appellate Tribunal, Tumakuru. Accordingly, the said writ petition was numbered as Appeal No.477 of 1986.
6. In the meanwhile, there was another appeal in No.212 of 2006 pending pursuant to an order passed in W.P.No.37373/1982. These two appeals were taken up for consideration by the Land Reforms Appellate Tribunal, Tumakuru and on 21.04.1989 where two orders came to be passed one by Judicial Member where the occupancy right of B.V.Srinivasaraju was recognized to an extent of 3 acres 6 guntas. Another by Executive Member on the very same day contrary to the view of the Judicial Member. In the said proceedings, land granted to Puttashamaiah was rejected. Though these facts are apparent from the documents which are produced by the legal representatives of B.V.Srinivasaraju, admittedly, these documents were not available for consideration before the trial court.
7. With this, what is seen is out of 6 acres 12 guntas in Sy.No.8 of Rangapura Village, the entitlement of the first respondent, B.V.Srinivasaraju is 3 acres 6 guntas and that of Venkataraju, father of plaintiff was 3 acres guntas. At this juncture, learned counsel for the respondents, i.e., the widow and children of B.V.Srinivasaraju would bring to the notice of this court that Venkataraju who was granted 3 acres 6 guntas in the said Sy.No.8 of Rangapura Village approached the revenue authorities and got 3 acres 6 guntas mutated to his name and got it renumbered as Sy.No.15.
8. With this, what is remaining in Sy.No.8 of Rangapura village is only 3 acres 6 guntas which was available to the share of B.V.Srinivasaraju is the case of the respondents before this Court. According to them, document No.ADLR MPR No.205/1996-97 confirmed the land granted in favour of plaintiff’s father Venkataraju is already mutated and renumbered as Sy.No.15. Therefore, nothing survives for them to consider in Sy.No.8 of Rangapura Village.
9. In any event, all these things cannot be decided without producing and marking said documents in the trial court and giving an opportunity to the parties to subject them to proof. Therefore, reserving liberty to the legal representatives of B.V.Srinivasaraju to appear in the remanded original suit in O.S.No.384/2002 where they are permitted to appear as defendants in the said suit, to file detailed written statement along with all the documents relied upon by them. Thereafter, the court below after framing appropriate issues, shall record evidence and thereafter, decide the same by its judgment and decree.
10. Till such time, the land bearing Sy.No.8 of Rangapura Village should not be developed in any manner until that suit is decided. It is also made clear that in the light of the judgment passed in this appeal, the revenue entries made with reference to the remaining 3 acres 6 guntas in Sy.No.8 of Rangapura Village shall be restored to its original position as it was on the date of filing of the suit in O.S.No.384/2002. It is also made clear that the remanded suit shall be disposed of within eighteen months from the date, it is taken up for consideration. To avoid further delay, this matter to be listed before the trial court on 25.02.2019.
Sd/- JUDGE dh