Allowed

Kamala v. the State of Karnataka

Karnataka HC14 Dec 2020RSA/720/2007

Case brief

AI extract

What is this about?

Appellants challenged the dismissal of a suit seeking declaration and injunction regarding kumki rights over government land abutting their private holdings. The High Court set aside lower courts' decisions, affirming kumki rights for agricultural use while barring fencing.

What did the court decide?

Set aside impugned judgment; affirmed plaintiffs' right to use B Schedule property as kumki but barred erection of fence or exclusion of others.

Kamala Vs the State of Karnataka — Property and Title | Karnataka HC (2020)

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

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DATED THIS THE 14^TH DAY OF DECEMBER, 2020

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BEFORE

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THE HON’BLE MR. JUSTICE N.K.SUDHINDRARAO

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R.S.A.No.720/2007

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BETWEEN:

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KAMALA, AGED ABOUT 51 YEARS.

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SHAMBU MOOLYA, AGED ABOUT 49 YEARS.

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DEVAKI, AGED ABOUT 47 YEARS

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4 . REVATHI, AGED ABOUT 44 YEARS.

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5 . KUSHALA, AGED ABOUT 41 YEARS

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APPELLANTS (1) TO (5) ARE CHILDREN OF LATE NANAYYA MOOLYA ALL ARE R/AT PERNAGULI, BADAGA ULIPADY VILLAGE MALALI POST, MANGALORE TALUK, D.K.

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6 . HONNAYYA MOOLYA S/O THUKRA MOOLYA AGED ABOUT 66 YEARS

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7 .SMT. PREMA

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W/O VENKAPPA MOOLYA AGED ABOUT 46 YEARS

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8 . DUGGAMMA W/O LATE THIMMAYYA MOOLYA AGED ABOUT 57 YEARS

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9 . ROHINI W/O LATE HARISCHANDRA AGED ABOUT 35 YEARS

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10 . THARANATHA S/O LATE THIMMAYYA MOOLYA AGED ABOUT 32 YEARS.

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11 . KOGGU AGED ABOUT 40 YEARS 12 . SMT. GIRIAMMA AGED ABOUT 37 YEARS 13 . UMESH AGED ABOUT 33 YEARS 14 . MURARI AGED ABOUT 31 YEARS APPELLANTS (11) TO (14) ARE CHILDREN OF LATE HOOVAYYA MOOLYA. ALL ARE R/AT PERNAGULI, BADAGA ULIPADY, MALALI POST MANGALORE TALUK (DK). …APPELLANTS (BY SRI M SUDHAKAR PAI, ADVOCATE)

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AND:

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1 . THE STATE OF KARNATAKA REPRESENTED BY THE DEPUTY COMMISSIONER

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D K DISTRICT, MANGALORE.

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2 . THE TAHSILDAR MANGALORE TALUK MANGALORE (DK). …RESPONDENTS

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(BY SMT.SAVITHA T H, HCGP)

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THIS RSA IS FILED UNDER SECTION 100 OF CPC AGAINST THE JUDGMENT AND DECREE DATED:7.12.2006 PASSED IN R.A.No.37/2004 ON THE FILE OF THE II ADDITIONAL CIVIL JUDGE(SR.DN.), MANGALORE, DISMISSING THE APPEAL AND CONFIRMING THE JUDGMENT AND DECREE DATED:24.1.2004 PASSED IN OS.No.81/2000 ON THE FILE OF THE III ADDITIONAL CIVIL JDUGE (JR.DN.) AND IV ADDITIONAL CIVIL JUDGE, (JR.DN.) (I/C), MANGALORE.

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THIS RSA COMING ON FOR HEARING THIS DAY, THE COURT DELIVERED THE FOLLOWING:

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JUDGMENT

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The appeal is directed against the judgment and

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decree dated 07-12-2006 passed in RA No.37/2004

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by the learned II Additional Civil Judge (Sr.Dn) at Mangalore, wherein the appeal came to dismissed confirming the judgment and decree dated 24-01-2004 passed in O.S.No.81/2000 by the IV Additional Civil Judge (Jr.Dn), Mangalore in OS

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No.81/2000. Being aggrieved by the said judgment and decree passed by the learned first appellate judge, plaintiffs are in appeal.

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In order to avoid confusion and overlapping,

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the parties herein are referred to in accordance with their rankings as held by them before the trial court.

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The prayers sought by the plaintiffs in the

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original suit is as under:

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(a) For a declaration that the ‘B’ schedule property herein forms kumki to S.No.16/17 comprised in ‘A’ schedule property that belong to the plaintiffs in different parcels and are incapable of being allotted as sites without prior extinguishment of the kumki right of the concerned plaintiffs in the ‘A’ schedule property;

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(b) For permanent prohibitory injunction restraining the defendants, their man and servants from allotting any portions of ‘B’ schedule property herein as sites or interfering

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with the enjoyment of the ’B’ schedule property as kumki by the plaintiffs without prior extinguishment of the kumki rights of the plaintiffs in ‘B’ schedule property.

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4. The suit schedule A and B properties are as

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under:

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SCHEDULE ‘A’

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“Description of the total holdings of the Plaintiffs held by them in different portions under the Registered Partition Deed dated 2.10.1998 of Badaga Ulipady village:

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Item	RS.No.	Extent A.C.
1.	16/9	1.14
2.	16/16	2.24
3.	16/17	2.09
4.	16/18	0.14
5.	16/22A	0.44
6.	9/1A4	0.10
7.	9/1A5	0.20
8.	9/1C1	0.38
	****

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SCHEUDULE ‘B’

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Immovable property situated in Badagu ulipady village of Mangalore Taluk, Bearing the following particulars:

R.S.No. Extent

139 4.64 acres ****

The above properties are government land and is shown and coloured in the Plan annexed and denoted with Letter ‘B’. The above property is kumki to S.No.16/17 of extent 2.09 cents comprised in the ‘A’ Schedule above.”

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Thus, the coverage of the case of the plaintiffs is

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that ‘A’ schedule lands are purely depending on the shelter, need and accommodation by ‘B’ schedule property.

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It is the case of the plaintiffs that Late

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Nonayya Moolya was a chalageni tenant in respect of agricultural land stated in plaint A schedule property and he had filed declaration and occupancy right has

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been conferred in his favour in respect of A schedule property by the Land Tribunal in LRT No.1250/78-79 and Nonayya Moolya since then is in possession and enjoyment of the same and touching some of items in

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A schedule property there is government land

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comprised in S.No.139 of the same village and in the said land an extent of 4.64 cents had always been in his possession. The said land has been kumki to the chalageni holdings of Nonayya Moolya. After the death of Nonayya Moolya plaintiffs 2 to 6 being the legal heirs of Nonayya Moolya entered into a registered partition deed on 3-10-1998 allotting shares to the plaintiffs. Since kumki lands are essential for plaintiffs for collections of green menures, for cattle grazing etc., they have planted cashew nut plants in lands and therefore, they filed applications before the Land Grant Authority for regularization of their unauthorized occupation of respective kumki land in S.No.139 of Badagaulipady village. However, defendants determined to proceed ahead with allotment of 4.64 acres in S.No.139 of the said village. It is in this connection suit came to be filed for permanent injunction.

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6. 2^nd defendant filed written statement

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denying the plaint averments and contending that suit is bad for non issuance of statutory notice under Section 80 of CPC. It is denied that plaintiffs are eligible to claim kumki rights over the plaint B schedule property and kumki privilege is available only to wargadar’s of the property. Plaintiffs are not entitled for any kumki right over ‘B’ schedule property and they never in possession of ‘B’ schedule property. Defendants are the owners of plaint B schedule property admittedly plaintiffs ancestors are chalageni tenant and a chalageni tenant is not entitled for any kumki privilege. The land bearing S.No.130 is a government land measuring 4.64 acres and the right of a kumkidar is limited as provided under Board standing order. The plaintiffs created documents to gain unlawfully. It is the contention of the defendants that land covered under S.No.139 measuring 3.64

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acres out of 4.64 acres has been proposed for grant of house sites to the landless agricultural labours as per he programme and policy of the government. The plaintiffs with an intention to grab government land approached this court. The claim of the plaintiffs is opposed to the principles of law and natural justice and as such they are not entitled for any relief claimed in the suit.

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The 1^st defendant has filed a memo

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adopting the written statement filed by 2^nd defendant.

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On the basis of pleadings and contentions

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of both the parties, the trial judge framed the following issues:

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”1) Whether the plaintiffs prove that 4.64 acres in SY.No.139 of Badagaulipady village has been kumki land to A Schedule property?

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Whether the plaintiffs prove that they are and were in absolute possession of B schedule property?

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Whether the 2^nd defendant proves that the plaintiffs are chalageni tenant and Chalageni are not entitle for any kumki previlage?

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Whether the plaintiffs are entitled for relief of declaration?

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Whether the plaintiffs are entitle for relief of permanent prohibitory injunction?

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What order or decree?”

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The learned trial judge was accommodated

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with the following oral and documentary evidence on

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behalf of plaintiffs.

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P.W.1- Shambu Moulya.

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“E.X.P1-Notarised copy of partition. E.X.P2-Copy of legal notice. E.X.P3-Reply E.X.P4-Copy of notice issued to president and secretary. E.X.P5-Postal receipt E.X.P6-Postal receipt UCP E.X.P7-Original copy of order of land Tribunal. E.X.P8-Original copy of form No.10. E.X.P9-Pahanis(35 Nos.) E.X.P10-Sketch E.X.P11-Sketch E.X.P12-Postal receipt. E.X.P13-Application of the plaintiff.”

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However, no oral or documentary evidence are

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adduced or produced on behalf of the defendants.

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The representation of the Government regarding the case does not appears to be

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satisfactory. As a matter of fact private properties are concerned, people will be at logger heads and will be ready 24 x 7 to defend their title and prevent tress passers. But insofar as Government is concerned, the prosecuting officials very often feel that the matter is not serious. This tendency has to be removed if not demanded default. As stated here, there is no oral and documentary evidence on behalf of defendants.

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Upon conclusion of the trial, the learned trial

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judge dismissed the suit with costs. Against the said

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judgment and decree, plaintiffs preferred an appeal before the first appellate court in RA No.37/2004 which came to be dismissed on 07-12-2006 confirming the judgment and decree dated 24-012004 passed by the trial judge in O.S.No.81/2000. Against which, the plaintiffs/appellants have presented this regular second appeal.

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This court while admitting the appeal on 06-11-2009 framed the following substantial question of law:

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“Whether the two courts below having held that he suit schedule ‘B’ property is a kumki land, had erred in law in not giving the relief of declaration to that effect?

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Learned counsel Sri. M.Sudhakar Pai for plaintiffs/appellants would submit absolutely plaintiffs

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are entitled for kumki rights for the benefit of their varga lands which are stated in the A schedule. In

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other words when it matters the ownership of the land recorded as kumki no private person can claim himself as the owner of kumki land. At the time of determining the aspect of kumki rights, state government decided the occupancy rights of farmers who have cultivated the kumki, bani, betta, hadi, soppina bet, jumma lands in Akrama Sakrama scheme.

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This would suggest that whenever the

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government land is abutting to your land and when your operation requires maintenance of factually grazing, using the leaves for drying them for the purpose of manure, more particularly, where cashew nuts are grown the dependancy on other land is very

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much required as the parking space is required for operation. Nodoubt that kumki lands are nothing but those lands which are owned by the government, located adjoining to patta lands which is under

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cultivation of the farmers. In other words, the conventional name i.e. given to the patta land is varga land. Thus, the government has to accommodate agricultural benefit though the in support of kumki land. But it cannot be forgotten for a while that the kumki holders can not use it for their exclusive purpose.

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Learned counsel for plaintiffs/appellants submits that if the kumki lands are not granted to them, they will suffer irreparable loss as they are mainly depending on the said land.

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Smt.Savitha T.H learned HCGP for respondents/defendants submits that plaintiffs cannot seek declaration for themselves and they cannot claim personal rights over the kumki lands. The claim of kumki land is notified insofar as the lands cultivated privately by the farmers when abutting by the

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government land it becomes necessary to be used as a supporting land for agricultural activities and they

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are notified by the government as kumki lands.

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At this stage, the following additional

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substantial question of law arises for consideration.

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“Whether the kumki right is entitled for a ownership of a person and permanent structure could be built or it could be fenced?”

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Insofar as present case is concerned, it is

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the case of the plaintiffs that the properties mentioned in A schedule are allotted to them in the partition and right from the time immemorial and B schedule properties is being used as kumki land. Here, it is necessary to mention some of the features of kumki land which are as under:

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There cannot be any dispute regarding the nature of ownership over kumki land that had invariably belonged to government which is excluded from primary ownership;

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It is abutting the regular patta land of the farmers;

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For various agricultural facilities including grazing acts of possession, use of utility using the place as a drying yard and all incidental activities and accommodation could be used. It is just like a Railway waiting room or a platform wherein people waiting for train or those who come to see the mop use of; railway waiting room, platform after train is running led certain times they can sit in the train also no one is prevent them unless a nuisance is created but no body can claim ownership over the platform but he is entitled to use it and that happens in the case of kumki land;

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Kumki land does not come along with the ownership of a particular person. For example, if a particular land is a private land and depend on another survey number, kumki land is thus A land is depending on B land.

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The regular course of transfer would be when A land is sold by the owner facilities are also transferred for the same land irrespective of owner. This cannot be mis construed to be A land was under his ownership and B land was under his possession and he is entitled to use the kumki land independently by virtue of ownership of varga land.”

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The appellate judge has considered the documents produced by the plaintiffs such as, Ex.P1Notarised copy of partition deed;Ex.P7- order of land Tribunal, Ex.P8 form No.10, Exs.P9- Copy of Pahani; Ex.P10 and 11-Sketch and Exs.P13 to P18 applications filed by the plaintiffs.

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At this stage, learned Government Pleader for defendants/respondents produced copy of the RTC extract of survey No.139, wherein, in Column No.9, it is shown as ‘Sarkari land’ in respect of survey No.139. Thus, insofar as the quality of kumki land is concerned, it is stated as ‘Sarkari land’. The extent of property is 4 acres 64 cents.

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Kumki rights are also discussed in he judgment that they are available to certain lands to denotify the kumki land in favour of a private person is a uphill procedure and that has to be looked into

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very seriously and carefully because it amounts to the interest of the farmers. Now it is crystal clear that kumki lands are available for varga land.

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It is pertinent to note that, the trial court has appointed the Commissioner and he has

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submitted his report which is as under:

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COMMISSIONER’S REPORT

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“The undersigned Advocate-Commissioner appointed in the above case to hold Local Inspection, on behalf of the Plaintiff – one Shanker Moolya and her Advocate Sri Guruprasad were present. The defendants or their Counsel was not present. The Surveyor attached to the office of ADLR Sri Suresh, the Surveyor from the office of ADLR alongwith his assistant were present. The Surveyor attached to the office of ADLR Sri Suresh has measured the suit Schedule property in the presence of aforementioned persons as per the instructions of the Commissioner. After holding local Inspection as aforesaid the Commissioner assures the said points hereunder.

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After measuring the property, the Plaint ‘B’ schedule property is identified and shown in the annexed surveyor’s sketch. The Plaint ‘B’ schedule property is touches the ‘A’ Schedule property and surrounded by old fence. The extent of land in the ‘B’ Schedule

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premises is 3 acres shown in the yellow colour in the Surveyor’s sketch.

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The Commissioner has noted about 50 cashew nut trees 200 Cashunut plants, 200 Akeshia plants, green manure in ‘B’ Schedule property.”

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Insofar as Ex.P13 is concerned, it is an endorsement issued by the Nada Kacheri by Deputy Tahsildar wherein it is mentioned that the declaration of rights of plaintiffs over the schedule property is rejected and the contextual reading of the document is that, the said land is kumki and it is to be as such as the plaintiffs cannot claim exclusive right over it.

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In the circumstances, the lands are granted irrespective of the nature of geni. The use of rights of agricultural purpose cannot be deprived to the plaintiffs also as it cannot be deprived to others. In this connection, it is made clear that plaintiffs cannot raise fence or restrict use of others over the property. On the other hand, the kumki land is a government

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land at the disposal of the government. However, as it is clear from the commissioner’s report that ‘A’ schedule land is abutting ‘B’ schedule land, dependency is necessary for the agricultural purpose that cannot be obstructive so the conclusion can only be there cannot be actual exclusion of farmers from kumki land. With this the substantial questions are answered accordingly. Kumki land in a particular survey number is designated to enable accommodation in several survey numbers. Thus holders of land in varga i.e., his private land can use the benefit of kumki, but cannot interfere with the similar rights of others connected to varga land holders.

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For the foregoing reasons, the appeal is disposed of.

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The judgment and decree dated 7-12-2006 passed in R.A.No.37/2004 and the judgment and

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decree dated 7-12-2006 passed in O.S.No.81/200 by

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both the courts below are set aside holding that plaintiffs cannot be deprived of their rights to use ‘B’ schedule property as kumki to ‘A’ schedule property.

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The enjoyment of kumki rights of the plaintiffs will no way come in the way of defendants or other users who are also entitled for enjoying the kumki land.

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However, it is made clear that plaintiffs cannot raise fence or restrict other users over the said property.

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Sd/JUDGE

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tsn*

Kamala v. the State of Karnataka

Case brief

What is this about?

What did the court decide?

Kamala v. the State of Karnataka

Case brief

What is this about?

What did the court decide?

What the court decided

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