IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 3RD DAY OF OCTOBER 2017 BEFORE THE HON'BLE MR. JUSTICE S.N. SATYANARAYANA R.S.A.No.677/2004 (INJ) BETWEEN:
T NARAYANA S/O T. MANJAPPAIAH MAJOR R/O TALAVANE, HARALANE VILLAGE KOPPA TALUK CHICKMAGALUR DIST. ... APPELLANT (BY SRI G. KRISHNA MURTHY, SR. COUNSEL FOR SRI CHANDRAKANTH PATIL.K. ADVOCATE) AND:
1. M LAKSHMIPATHI AGED ABOUT 60 YRS SINCE DEAD BY LEGAL REPRESENTATIVES 1(a) SMT. RUKMINI W/O LATE M. LAKSHMIPATHY AGED ABOUT 73 YEARS 1(b) SRI SATHYAMURTHY.M.L. S/O LATE M. LAKSHMIPATHY AGED ABOUT 53 YEARS BOTH ARE RESIDENTS OF MEGOOR COFFEE THOTA KOPPA TALUK, CHIKMAGALUR DISTRICT PIN CODE 577 126 2. SATHYA MURTHY S/O M. LAKSHMIPATHI AGED ABOUT 34 YEARS R/O MEGUR, KOPPA TALUK 3. M.G. VENKATA RAO AGED ABOUT 58 YRS SINCE DEAD BY LEGAL REPRESENTATIVES 3(a) SMT.LAKSHMAMMA W/O M.VENKATA RAO AGED ABOUT 62 YEARS 3(b) SRI SRIDHARA S/O M.VENKATA RAO AGED ABOUT 42 YEARS BOTH ARE RESIDENTS OF HARLANE VILLAGE, MEGUNDA HOBLI KOPPA TALUK, CHIKMAGALUR DISTRICT ... RESPONDENTS (BY SMT. RUKMINI DEVI M G, ADV., FOR C/R-2 AND R-3 ( a & b) V/O DATED 02.09.2016 APPEAL AGAINST R1 IS DISMISSED AS ABATED, R-1(a) – SERVED) THIS R.S.A. IS FILED UNDER SECTION 100 CPC AGAINST THE JUDGMENT AND DECREE DATED 29.3.2004, PASSED IN RA.No.10/2002, ON THE FILE OF THE CIVIL JUDGE (SR.DN.), CHIKMAGALUR, ALLOWING THE APPEAL AND SETTING ASIDE THE JUDGMENT AND DECREE DATED 20.12.2001, PASSED IN O.S.No.341/91, ON THE FILE OF THE CIVIL JUDGE (JR.DN.), KOPPAL.
THIS R.S.A. COMING ON FOR REPLY ARGUMENTS THIS DAY, THE COURT DELIVERED THE FOLLOWING:
J U D G M E N T This second appeal is by the plaintiff in O.S.No.341/1991. The said suit is for the relief of permanent injunction against the respondent Nos.1 to 3 herein with reference to the suit schedule property, which is 4 acres of coffee plantation situated in Survey No.93 of Haralane Village, Koppa Taluk, Chikmagalur District. Admittedly, the plaintiff in the original suit is the owner of the suit schedule property based on the order of grant dated 30.9.1984, which is confirmed by the grant certificate dated 27.1.1987 vide Ex.P.4. It is the grievance of the plaintiff that defendant Nos.1 to 3 in the said proceedings are disturbing his peaceful possession and enjoyment of the suit land, which was granted in his favour. Hence, the aforesaid suit was filed for the relief of injunction. In the said proceedings, defendants entered appearance, filed the written statement contending that they were in unauthorized cultivation of a portion of the land, which was granted in favour of plaintiff and that they continued to be in possession and cultivation of the same. It is further stated that they have cultivated coffee plantation on the suit land. Therefore, the prayer for injunction should not be considered.
2. With these pleadings, the suit went into trial wherein on behalf of the plaintiff he got his brother Sri T. Prakash examined as PW1 and also relied upon 39 documents to show his title and cultivation to the suit property, which are at Ex.P1 to P39. In the said proceedings, the plaintiff was able to show the Takararu Thakthe paid by him vide Form No.7, which is at Ex.P33 and Ex.P34 and also the cultivation of coffee vide Ex.P8, certificate of registration as coffee planters issued in Form B (Rule 4) under Section 14 of the Coffee Act, 1942, which was indicative of cultivation of coffee by the plaintiff in the disputed land measuring to an extent of 4 acres, which is said to have been granted in his favour. In addition thereto, the other documents like RTC, mutation register extracts were produced to establish possession and cultivation of the suit land by the plaintiff.
3. Per contra, on behalf of the defendants, first defendant stepped into witness box adducing evidence in support of their defence, wherein he relied upon 42 documents, which are at Ex.D1 to D42, which are basically with reference to the sketch of the property, which they are claiming to be in unauthorized cultivation, village map, proceedings before KAT in Appeal No.685/1990 and other writ proceedings, which were initiated by them and also endorsement issued to them by the Tahsildar with reference to the land being granted in favour of the plaintiff and further they also relied on the application filed by the defendants, certified copy of the resolution, which are at Ex.D14 and 15.
4. The trial Court on appreciation of the documents available on record proceeded to answer the issues, which were framed with reference to the plaintiff proving his lawful possession and enjoyment of suit schedule property in the affirmative and the alleged obstruction by the defendants also in the affirmative and consequently decreed the suit of the plaintiff by its judgment dated 20.12.2001. The said judgment and decree was subject matter of appeal in R.A.No.10/2002 on the file of the Civil Judge (Sr.Dn.) Chikmagalur wherein the Lower Appellate Court on re-appreciation of the pleadings and evidence available on record proceeded to frame four points for consideration, which are mainly with reference to lawful possession of the plaintiff being proved, interference by the defendants being proved and whether the evidence of the parties is properly appreciated by the Trial Court and the fourth point being whether there is any requirement to interfere with the judgment and decree of the Court below. The Lower Appellate Court on re-appreciation of the material available on record answered first three points in the negative, held to be not proved. Interference is also held to be not proved the fourth point in the affirmative, set aside the judgment and decree passed by the Trial Court and consequently dismissed the suit of the plaintiff for the relief of permanent injunction.
5. The plaintiff being aggrieved by divergent finding of the Lower Appellate Court has come up in this appeal. When this matter was taken up for admission on 24.9.2004, this Court after looking into the order dated 9.7.2002 passed in W.P.Nos.326- 327/2001 passed by the Coordinate Bench of this Court, wherein the dispute is again between the same parties with reference to grant of very same land in favour of appellant herein and his brother T.Prakash, P.W.1 in the original suit, proceeded to admit this appeal by framing two substantial questions of law, which are as under:
(i) Whether the first appellate Court was justified in ignoring the contents of the Grant Certificate – Ex.P-4 when the same was upheld by this Court in W.P.Nos.326-327/2001?
(ii) When admittedly, the defendants were claiming possession as unauthorized occupants and when the appellant was claiming title by way of a valid grant, was the first appellate Court justified in interfering with the order of injunction granted by the trial court?
6. Heard, the learned counsel for appellant and as well as contesting respondents. Perused the judgments of both the Courts below with reference to pleadings, oral and documentary evidence placed on record. Further, the order dated 9.7.2002 passed in W.P.Nos.326-327/2001, which was between the same parties and the brother of appellant who is P.W.1 in the original suit, in respect of grant of land in favour of appellant herein and his brother T.Prakash, this Court would answer both the substantial questions of law in the negative for the following reasons;
Admittedly, the original suit in O.S.No.341/1991 is for the relief of permanent injunction wherein the plaintiff relied upon the grant order made in his favour on 30.9.1984 and also the grant certificate issued pursuant thereto vide Ex.P4 dated 27.1.1987, which is with reference to 4 acres of agricultural land said to be developed as coffee cultivating land. In the said proceedings, plaintiff has not only established the grant in his favour but also his possession by relying upon the RTC, mutation extract, which was indicative that the land is mutated in his favour. When admittedly the land being agricultural land, possession of the said land can be recognized through the revenue documents, RTC extracts, which confirm his possession and cultivation of the same. In addition to that, it is seen that the plaintiff in the original suit has secured the coffee registration certificate for cultivating coffee on the said land and he would also rely upon various other documents for having been in possession and cultivation of the same as coffee plantations. Therefore the Trial Court has rightly appreciated the documents and has decreed the suit for permanent injunction. In the meanwhile, it is seen that the appellant/plaintiff has also filed writ petition along with his brother Sri T. Prakash (PW1) in the very same suit seeking to quash the order dated 31.7.2000 in Appeal Nos.280/1999 and 231/2000 before the Karnataka Appellate Tribunal, wherein the grant which was made in favour of the plaintiff in the original suit and his brother PW1 was subject matter of challenge, where the Karnataka Appellate Tribunal is said to have set aside the same on the ground that there is over lapping to an extent of 2 acres 20 guntas of land in Survey No.93, which according to Tribunal was in cultivation of the defendants. There is over lapping of 1 acre 20 guntas out of 12 acres of land granted to the second writ petitioner, which is required to be identified.
7. Further, when the said order of the Karnataka Appellate Tribunal in Appeal Nos.280/1999 and 231/2000 was challenged in W.P.Nos.326-327/2001, this Court passed the following order:
i) Writ petition is partly allowed.
ii) The order of the Karnataka Appellate Tribunal is set aside, and the grant in favour of the petitioners is confirmed.
iii) The Deputy Commissioner is directed to hold an enquiry to find out whether the respondents 1 and 2 are entitled to any grant and if so to what extent.
iv) If the Deputy Commissioner comes to the conclusion that the respondents 1 and 2 are entitled to the grant and the land to be granted to them is overlappimg with the land already granted to the petitioners, then grant the extent of land overlapping to the respondents 1 and 2.
v) In the event the portion which is already granted to the petitioners is granted to the respondents 1 and 2 on the ground it is overlapping, then subject to availability to compensate the petitioners 1 and 2 to that extent lost.
vi) If the Deputy Commissioner comes to the conclusion if respondents 1 and 2 are not entitled to any grant, then the land granted to petitioners stands undisturbed.
Wherein the grant order made in favour of the plaintiff in original suit and his brother Sri T. Prakash is confirmed. While doing so, it was further observed that the Deputy Commissioner to conduct an enquiry and if it is found that in fact 1 acre 20 guntas of the land claimed by defendants is over lapping in the land granted to the plaintiff in the original suit and simultaneously if there is over lapping of 2 acres and 20 guntas of land claimed by defendants is overlapped in the land granted in favour of PW1, then the Deputy Commissioner should consider to compensate defendants to that extent in larger extent of 482 acres available in Survey No.93. The said order of co-ordinate bench of this Court in W.P.No.326-327/2001 has reached finality. It is further seen that thereafter the Deputy Commissioner has not taken appropriate steps to comply with the said order dated 9.7.2002, which was under challenge before the Karnataka Appellate Tribunal by the respondents herein in Appeal No.685/2004, which is allowed by order dated 18.8.2017. Karnataka Appellate Tribunal has further directed the Deputy Commissioner to comply with the order of this Court in W.P.Nos.326-327/2001 dated 9.7.2002.
8. In any event, non-compliance of said directions issued to Deputy Commissioner would not come in the way of confirming injunction order, which is granted in favour of plaintiff in O.S.No.341/1991, which is based on the revenue records, grant certificate, mutation order and also RTC, which would indicate possession, cultivation and enjoyment of the said land in the hands of the plaintiff. However, allowing of this appeal by setting aside the judgment and decree in R.A.No.10/2002 and confirming the judgment and decree dated 20.12.2001 in O.S.No.341/1991 will not take away the rights of the defendants to establish what extent of land claimed by them is overlapping in the land granted in favour of appellant herein and his brother in Survey No.93 of Haralane Village, Koppa Taluk.
9. With such observations, this appeal filed by the plaintiff in original suit is allowed by setting aside the judgment and decree dated 29.3.2004 passed in R.A.No.10/2002 and consequently confirming the judgment and decree passed in O.S.No.341/1991 dated 20.12.2001.
Sd/- JUDGE MD