Dismissed

Sri Andavappa v. Smt. Puttamma

Karnataka HC8 Oct 2021RFA/1755/2005

Case brief

AI extract

What is this about?

First appeal by defendants against a decree declaring the plaintiff owner of four acres granted by the State and granting permanent injunction. The grant had been cancelled but the cancellation was set aside on appeal and remanded, with no fresh decision taken. The court declined to interfere, holding the bar under the revenue statute inapplicable at this stage, and dismissed the appeal.

What the court decided

AI extract

Sri Andavappa Vs Smt. Puttamma — Property and Title | Karnataka HC (2021)

¶1

¶2

IN THE HIGH COURT OF KARNATAKA AT BENGALURU

¶3

DATED THIS THE 8^th DAY OF OCTOBER, 2021

¶4

BEFORE

¶5

THE HON'BLE MR. JUSTICE H.P. SANDESH

¶6

R.F.A.NO.1755/2005 (DEC/INJ)

¶7

BETWEEN:

¶8

SRI ANDAVAPPA S/O LATE DODDAIAH SINCE DEAD BY HIS LRs.,

¶9

1 . SMT. JAYAMMA W/O LATE ANDAVAPPA AGED ABOUT 50 YEARS

¶10

2 . SRI VENKATESH S/O LATE NARAYANAPPA AGED ABOUT 45 YEARS

¶11

3 . SRI VENKATASHAMAPPA S/O LATE PAPAIAH AGED ABOUT 70 YEARS

¶12

ALL ARE RESIDING AT GOWDAHALLI VILLAGE DODDA TUMKUR POST DODDABALLAPUR TALUK BENGALURU (RURAL) DISTRICT-561 203.

¶13

4 . SMT. THIMMAKKA W/O LATE GANGAIAH AGED ABOUT 65 YEARS R/A ALAHALLI VILLAGE ARALUMALLIGE POST DODDABALLAPUR TALUK BENGALURU (RURAL) DISTRICT-561 203.

¶14

¶15

REPRESENTED BY THEIR GPA HOLDER SRI KRISHNAPPA S/O LATE MUNISWAMAPPA OF DODDA TUMKUR VILLAGE DODDABALLAPUR TALUK BENGALURU (RURAL) DISTRICT-561 203.

¶16

4(a) SMT.GANGAMMA D/O LATE GANGAIAH W/O LATE RAMAIAH

¶17

AGE: 53 YEARS

¶18

4(b) SMT.RATHNAMMA D/O LATE GANGAIAH W/O RAMAIAH AGE: 49 YEARS

¶19

4(c) SMT. LAKSHMAMMA D/O LATE GANGAIAH W/O NARAYANAPPA AGE: 47 YEARS

¶20

APPELLANT NOS.4(a) TO R(c) ARE REPRESENTED BY GPA HOLDER SRI KRISHNAPPA S/O LAGE MUNISWAMAPPA AND R/AT ALAHALLI GRAMA, KASABA HOBLI DODDABALLAPUR TALUK BENGLURU DISTRICT.

¶21

(AMENDED VIDE COURT ORDER DATED 24.07.2013) … APPELLANTS (BY SRI RAVISHANKAR, ADVOCATE)

¶22

AND:

¶23

1 . SMT. PUTTAMMA W/O SRI SRINIVASAMURTHY AGED ABOUT 60 YEARS RESIDING AT KANAKADASA ROAD

¶24

¶25

DODDABALLAPUR TOWN BENGALURU (RURAL) DISTRICT-561 203.

¶26

2 . THE TAHASILDAR DODDABALLAPUR TALUK DODDABALLAPUR TOWN BENGALURU (RURAL) DISTRICT-561 203.

¶27

3 . THE CHIEF SECRETARY GOVERNMENT OF KARNATAKA REVENUE DEPARTMENT VIDHANA SOUDHA BENGALURU-560 001. ... RESPONDENTS

¶28

(BY MRS.K.R.ROOPA, HCGP FOR R2 AND R3; SRI N.SHIVAKUMAR, ADVOCATE FOR R1)

¶29

THIS R.F.A. IS FILED UNDER ORDER 41 RULE 1 OF CPC AGAINST THE JUDGMENT AND DECREE DATED 07.10.2005 PASSED IN O.S.NO.15/2002 (OLD NO.74/1995) ON THE FILE OF THE CIVIL JUDGE, (SR. DN.), DODDABALLAPUR, DECREEING THE SUIT FOR DECLARATION AND PERMANENT INJUNCTION.

¶30

THIS R.F.A. HAVING BEEN HEARD AND RESERVED FOR JUDGMENT ON 25.09.2021 THIS DAY, THE COURT PRONOUNCED THE FOLLOWING:

¶31

J U D G M E N T

¶32

This appeal is filed by defendant Nos.1 to 4 challenging the judgment and decree dated 07.10.2005 passed in O.S.No.15/2002 (old No.74/95) on the file of Civil Judge (Sr.Dn.) at Doddaballapur, declaring the plaintiff as owner and granting injunction against the defendants.

¶33

¶34

The parties are referred to as per their original rankings before the Trial Court to avoid the confusion and for the convenience of the Court.

¶35

The factual matrix of the case is that, it is the claim of the plaintiff that the suit schedule property more fully described in the schedule was granted in favour of the plaintiff, Tahasildar, Doddaballapur in a case No.LND/SR/1635/72-73. In terms of the grant, Grant Certificate was issued with a rough sketch map, RTC, Khatha and other revenue records are changed in the name of the plaintiff. It is contended that the defendants had no concern whatsoever, un-necessarily interfering with her possession in Block No.1 of the suit land and even tried to damage the Hurali crop, which the plaintiff has grown in the suit schedule property. It is also contended that the plaintiff was constrained to issue a legal notice to defendant Nos.5 and 6, Government officials explaining the fact of suit land granted to her and deliberate interference of the defendants to grab the property of the plaintiff. The suit was earlier filed and the same is numbered as O.S.No.74/1995 before the Civil Judge (Sr.Dn) at Bengaluru Rural District and thereafter the same was

¶36

¶37

transferred to Doddaballapur Court and re-numbered as O.S.No.15/2002.

¶38

In pursuance of the suit summons, defendant Nos.1 to 4, have filed their common written statement denying the claim of the plaintiff. The defendants have also denied the allegations of illegal interference by defendant Nos.1 to 4. The defendants also contended that the valuation and court fee paid is incorrect. The defendants in the written statement have contended that the suit Sy.No.5 is a vast extent of land in which a portion was allotted to the plaintiff and four others were allotted 4 acres of land each on 31.01.1977 by fixing the boundaries. Thereafter except one Shivamma, none were cultivated the land granted to them. Hence, the concerned authority after holding an enquiry and spot inspection, cancelled their grant under proceedings No.1635/72-73 dated 18.09.1986. As a result of which, the granted portions of land resumed back to Government. It is contended that the plaintiff also preferred an appeal in R.A.No.82/86-87 before the Assistant Commissioner, Doddaballapur Sub-Division. When the matter was remanded back for fresh enquiry in which she claimed as an unauthorized cultivator. But her plea was rejected by holding

¶39

¶40

that she was neither an agriculturist by profession nor the permanent resident of Gowdahalli Village. Thus, the plaintiff’s claim over suit schedule property is baseless. Thereafter, the concerned authority has granted one acre of land to each defendant to put them in possession and the Taluka Surveyor has also measured the land and fixed the boundaries. According to which, the mutation etc., are effected and revenue records are stood changed in their names. But still the plaintiff with malafide intention and to cause harassment, filed a suit in O.S.No.190/1991 by falsely describing the boundaries of the disputed land. Later on, due to her inability to identify her property, she got withdrawn the said suit with permission to file a fresh suit. The application filed under Order 39 Rule 1 & 2 was also rejected and the appeal also dismissed. The plaintiff has ventured to file one more suit in O.S.No.269/1994 with incorrect boundary description and again failed to prove the same. Hence, prayed the Court to dismiss the suit.

¶41

Based on the pleadings of the parties, the Trial Court

¶42

framed the following issues:

¶43

1. Whether the plaintiff proves that the suit schedule property was allotted to her by the Government and

¶44

¶45

Saguvali Chit was issued to her in case No.LND/SR/1635/1972-73?

¶46

2. Whether the plaintiff proves that prior to and as on the date of this suit she was in exclusive possession and enjoyment of the schedule property as granted?

¶47

3. Whether the defendants 1 to 4 prove that the grant made in favour of the plaintiff was cancelled by the competent authority since she failed to cultivate the land?

¶48

4. Whether the defendants prove that after the grant in favour of the plaintiff was cancelled 1 acre land each was granted to them?

¶49

5. Whether the valuation made is proper and court fee paid is sufficient?

¶50

6. Whether the plaintiff is entitled for the relief of declaration and permanent injunction as prayed for?

¶51

7. What decree or order?

¶52

The plaintiff in order to prove her case, her husband

¶53

as P.A. Holder was examined as P.W.1 and got marked the documents at Exs.P.1 to P47 and also examined one witness as P.W.2. On the other hand, the defendants have also not come

¶54

¶55

forward to give evidence but they have examined two witnesses as D.W.1 and D.W.2 and got marked the documents at Exs.D.1 and D53.

¶56

The Trial Court having heard the respective counsel answered issue Nos.1 and 2 as in the affirmative in coming to the conclusion that the land was granted in favour of the plaintiff in the year 1972-73 and also the plaintiff was in exclusive possession and enjoyment of the suit schedule property. The very contention of the defendants is that the grant was cancelled and answered as negative while answering issue No.3. However, the Trial Court comes to the conclusion that the defendants have proved that there was a grant in favour of the defendants one

¶57

acre of land each granted in favour of the defendants and answered other issues that proper court fee is paid and valuation is also made proper and answered issue No.7 that the plaintiff is entitled for the relief of declaration and permanent injunction. Being aggrieved by the judgment and decree of the Trial Court, the defendant Nos.1 to 4, have filed the present appeal before this Court.

¶58

¶59

The main contention of the appellants/defendant Nos.1 to 4 before this Court in this appeal is that the Trial Court has committed an error in not passing a speaking order and an erroneous finding was given after discussing both oral and documentary evidence placed on record. The finding given by the Trial Court declaring the plaintiff as the owner of the land measuring 4 acres in Sy.No.5 (Block No.1) of Gowdahalli Village, Doddaballapur Taluk is unjust and improper as the land granted to the plaintiff was cancelled by the authorities concerned vide order dated 18.09.1986 and no further grant was made in favour of the plaintiff. Under the circumstances, the trial judge ought not to have decreed the suit.

¶60

The Trial Court has not taken into consideration the

¶61

written statement filed by the Tahasildar in another case filed by the plaintiff against one Krishnappa and others, wherein, it is clearly contended that the land granted to the plaintiff has been cancelled and the plaintiff has filed an application seeking regularization of 4 acres of land in the same survey number contending that she has been in an unauthorized occupation of the said land and the Land Grant Committee has also rejected on

¶62

¶63

27.09.1994 against which no steps were taken by the plaintiff.

¶64

Under the circumstances, the first respondent miserably failed to prove her title and possession over 4 acres of land in the said survey number and the Trial Court has wrongly decreed the suit. It is also contended that the trial judge has erred in not taking into consideration the sketch which was produced at the time of grant and the sketch Ex.D28 and Ex.D52 which was drafted at the time of grant made in favour of the appellants, which clearly and categorically shows that the appellants granted land towards the western side of the said survey number whereas the land sought to be granted to the plaintiff is towards the eastern side of the said land. Thereby, the Trial Court has erred in decreeing the suit of the plaintiff presuming that the land granted to the plaintiff is towards the western side of the said land which actually is in possession and enjoyment of the appellants and not by the plaintiff. It is also contended that the learned trial judge ought to have taken into consideration the sketch prepared by the authorities while granting land to the defendants which was challenged by one of the allottee of the land along with the plaintiff became unsuccessful before the Deputy Commissioner Court and also before the High Court.

¶65

¶66

The Trial Court has erred in passing the decree for declaration despite the order of cancellation of grant made by the authorities, but in view of the alleged revenue entries continued in the name of the plaintiff in the revenue records which are not document of title. The trial Judge ought not to have decreed the suit for injunction filed by the plaintiff against Krishnappa and others in O.S.No.190/1991 and O.S.No.269/1994 in respect of the same land was withdrawn by the plaintiff with liberty to file another suit which was not done so. The Trial Court has committed an error in decreeing the suit relying upon the evidence of GPA holder. Thus, the plaintiff cannot take advantage of the defendants’ weakness in order to get a decree in their favour and the Court ought not to have decreed the suit. The Trial Court has not taken into consideration the possession of their land on which the plaintiff is claiming right and possession wherein, the plaintiff was not at all in possession of the land allotted to the defendants and the land claimed by the plaintiff though distinct and separate as it comes towards the eastern side of the said land.

¶67

¶68

The learned counsel appearing for the appellants would vehemently contend that the land granted in favour of the plaintiff was cancelled and the same has not been re-granted. Until that order is revised by the authorities under the act, the Civil Court could not have proceeded to decree the suit on the basis of the alleged grant which is cancelled subsequently.

¶69

The learned counsel appearing for the appellants would vehemently contend that the grant made in favour of the defendants was also cancelled by the Deputy Commissioner and the same is questioned before the KAT and the same is pending before the KAT. The learned counsel would vehemently contend that the Trial Court granted the decree against Section 61 of the Karnataka Land Revenue Act, 1964 and the matter was pending with regard to consideration of cancellation of grant is also pending before the KAT ought not to have entertained the civil suit.

¶70

The learned counsel for the appellants in support of his arguments relied upon the judgment of this Court in the case of The State of Karnataka v. Smt. H.J. Shakunthalamma reported in 2008(1) Kar. L.J. 79 , and brought to the notice of

¶71

¶72

this Court paragraph Nos.9 and 12 of the judgment, wherein, this Court has discussed in detail with regard to the exclusive jurisdiction of Revenue Courts and bar under Section 61 of the Karnataka Land Revenue Act, 1964 and comes to the conclusion that the plaintiff has to exhaust the remedy under Section 63 of the Act before instituting a suit or other proceeding against the Government. It is held that, no Civil Court shall entertain any suit or other proceeding against the State Government on account of any act or omission of the State Government or any Revenue Officer, unless the plaintiff first proves that previously to the institution of the suit or other proceeding, he has presented all such appeal allowed by the law for the time being; in force as, within the period of limitation allowed for bringing such suit or proceeding, it was possible to present.

¶73

The learned counsel also relied upon the judgment of this Court in the case of P. Ramalingappa v. State of Karnataka reported in AIR 1983 Kant. 22 , and brought to the notice of this Court the discussion made with regard to Section 61 read with Section 63 of the Karnataka Land Revenue Act, 1964 and the Court discussed in detail regarding jurisdiction of

¶74

¶75

the Civil Court and revenue authorities and set aside the judgment and decree of the First Appellate Court.

¶76

The learned counsel also relied upon the judgment of

¶77

the Madhya Pradesh High Court in the case of Ramgopal Kanhaiyalal v. Chetu Batte reported in AIR 1976 MP 160 , referring to this judgment, the learned counsel brought to the notice of this Court paragraph No.17 of the judgment, wherein, it is observed that, it is open to him to take recourse to the summary remedy under Section 250, or even without it straightway bring a suit in the Civil Court for declaration of his title and possession. Even if there has been a decision under Section 250 by a revenue Court, the party aggrieved may institute a civil suit to establish his title to the disputed land.

¶78

The learned counsel referring to these judgments

¶79

would vehemently contend that the Trial Court ought not to have entertained the suit for declaration and injunction when the grant was cancelled and issue is before the KAT. Hence, prayed this Court to set aside the judgment and decree of the Trial Court.

¶80

¶81

Per contra, learned counsel appearing for respondent Nos.2 and 3/State would vehemently contend that there is a dispute with regard to the description and identification of the property. Under such circumstances, the Trial Court ought not to have granted the relief of decree of declaration and injunction. Hence, it requires an interference of this Court.

¶82

The learned counsel appearing for respondent No.1/plaintiff in his arguments vehemently contend that the Trial Court considering both oral and documentary evidence placed on record rightly answered issue Nos.1 and 2 as in the affirmative granting the relief of declaration and also the injunction and comes to the definite conclusion that the plaintiff is in possession of the suit schedule property. Hence, this Court cannot find fault with the findings of the Trial Court in respect of issue Nos.1 and 2. The learned counsel mainly contended that the Tahasildar in Ex.P47 held that the suit schedule property is a distinct property and not the property granted in favour of the appellants herein. The Trial Court also in the judgment held that it is a distinct property and the Trial Court considered the evidence of PWs.1 and 2 and D.Ws.1 and 2, apart from that considered the

¶83

¶84

documents relied upon by both the respective parties and properly appreciated both oral and documentary evidence placed on record. Hence, there are no grounds to interfere with the findings of the Trial Court and there are no grounds to entertain the appeal.

¶85

Having heard the contentions of the respective learned counsel and also on perusal of the material available on record, this Court has to re-appreciate the material and while reappreciating the material available on record, the following points arise for the consideration of this Court:

¶86

(i) Whether the Trial Court has committed an error in decreeing the suit for declaration and injunction while answering issue Nos.1 and 2 as in the affirmative?

¶87

(ii) Whether the Trial Court has committed an error in coming to the conclusion that the land granted in favour of the plaintiff is a distinct property and not the grant made in favour of the defendants and whether it requires an interference of this Court?

¶88

(iii) Whether the Trial Court has committed an error in entertaining the suit and there is a bar

¶89

¶90

in entertaining the suit as contended by the learned counsel for the appellants?

¶91

(iv) What decree or order?

¶92

Point Nos.(i) to (iii):

¶93

Before considering the grounds urged in the appeal, it is appropriate to consider the evidence of the parties and pleadings whether it consonance with the finding of the Trial Court and whether the Trial Court has ignored both oral and documentary evidence available on record. This Court being the First Appellate Court having powers to consider the material on record and re-appreciate the same both on the question of fact and on the question of law. Hence, this Court would like to consider the evidence available on record. The plaintiff in order to prove her case, she examined one witness as P.W.1.

¶94

P.W.1 in his evidence, he reiterated the averments of

¶95

the plaint claiming that the land was granted in favour of the plaintiff and relied upon the documents Ex.P1-Special Power of Attorney. Ex.P2-grant certificate dated 23.11.1976. Ex.P3-grant cancellation order dated 18.09.1986. Ex.P4-M.E.No.16/95-96. Ex.P5-Survey sketch issued by Tahasildar. Ex.P6-Hiduvali

¶96

¶97

Pathra. It is also his evidence that the cancellation order was challenged before the Assistant Commissioner in R.A.No.82/8687, which is marked as Ex.P7.

¶98

It is the case of the plaintiff that the Assistant Commissioner set aside the order of the Tahasildar and remanded the matter to the Tahasildar for re-consideration. It is also the evidence of P.W.1 that the endorsement was given by the Tahasildar in terms of Ex.P8 and also the order issued by the Tahasildar as per Ex.P9. He also produced the order passed by the Tahasildar dated 24.09.1997, which is marked as Ex.P10, so also, the order passed by the Assistant Commissioner in LND.RUC(A)94:97-98, which is marked as Ex.P11. He also

¶99

produced the copy of the order passed by this Court in W.P.No.14467-470/1999, which is marked as Ex.P12. He also produced the copy of the Assistant Commissioner order, which is marked as Ex.P13 and the order of the Tahasildar as Ex.P14. The plaintiff also produced the mutation copy extract as Ex.P15. The plaintiff produced 7 RTC extracts, which are marked as Exs.P16 to P22. IL & RR copies are produced as Exs.P23 and P24. Three tax paid receipts are at Exs.P25, 26 and 27 and patta books are

¶100

¶101

marked as Exs.P28 and P29. He was subjected to crossexamination.

¶102

In the cross-examination, it is suggested that the plaintiff has avoided to come before the Trial Court by executing the Power of Attorney and the same was denied. He admits in the cross-examination that Sy.No.5 consists of 60 acres 14 guntas of land and also admits that the land was granted in the year 1972-73 in favour of Puttamma and also admits that in the grant certificate boundaries are not mentioned but he claims that the sketch was prepared at the time of issuance of Saguvali Chit. It is also admits that earlier his wife has filed a suit against one Krishnappa in O.S.No.190/1991 and the same was withdrawn.

¶103

He also admits that an application was filed seeking for temporary injunction and the injunction granted was vacated and as against that M.A.No.136/1991 was filed and the same was also dismissed. He also admits that earlier suit was withdrawn with liberty to file a fresh suit and filed O.S.No.269/1994. He also admits that before filing this suit, an application was given by his wife to grant the land in her favour. It is suggested that before filing the suit, the Land Grant

¶104

¶105

Committee rejected her claim and the same was denied, but he claims that his wife claimed that she has been in possession to the extent of 8 acres of land and also he has got document to show that her wife is in possession to an extent of 4 acres. He also admits that the land grant made in favour of his wife was cancelled in the year 1986. It is suggested that his wife was not in possession and hence, the same was cancelled. But the cancellation order was challenged before the Assistant Commissioner. The cancellation order was set aside and the matter was remanded to the Tahasildar. He admits that the said matter is still pending before the Tahasildar. He admits that in view of pending Civil Suit, the Tahasildar allowed the matter in part and kept the same pending till disposal of the civil suit. He admits that the application given by his wife is kept pending and considered the application of other grantees viz., Shivamma, Shanthamma and Channappa and granted the land in their favour. It is suggested that the defendants have questioned the same before the Assistant Commissioner and he says that he is not aware of the same. He says in the said appeal, the Assistant Commissioner has confirmed the order of Tahasildar. He admits that he has also approached the High Court and the High Court

¶106

¶107

remanded the matter for re-consideration to the Assistant Commissioner and the Assistant Commissioner in turn sent the file to the Tahasildar to enquire into the matter and the same is pending.

¶108

P.W.1 also further cross-examined and in the further

¶109

cross-examination he admits that 4 acres of land was granted in favour of his wife in 1972 and along with his wife other four persons were also got the grant. The other grantees viz., Shivamma, Channappa, Puttamma, Nagarathnamma and admits that after 1986 cancellation, the land was re-granted in favour of Puttamma and others in the year 1997. It is suggested that the land was not re-granted in favour of the plaintiff and the said suggestion was denied. But he claims that he has given the document to Court for re-grant. He admits that in Sy.No.5 total extent of land is 60 acres and 14 guntas. In the year 1976, 10 acres was granted in favour of Muniyamma and others. He was further examined before the Trial Court and he got marked the documents Exs.P32 to P47 i.e., issuance of notice and acknowledgement, phodi sketch, endorsement and notice issued against Krishnappa not to interfere in Sy.No.5. He also produced

¶110

¶111

the order sheet copy of O.S.No.190/1991, objections filed in O.S.No.269/1994 by the Tahasildar, the Land Grant Committee order dated 27.09.1994 and the copy of the order passed in LNDCR 168/01-02 dated 22.03.2003 and 28.04.2003, the order passed by the Assistant Commissioner in R.A.No.109/02-03 and R.A.No.24/03-04 passed by the Assistant Commissioner dated 06.08.2003. The endorsement issued that the application given by Puttamma is not placed before the Land Grant Committee and endorsement issued by the Tahasildar L & AC. The notice issued against the Tahasildar on 24.12.1997, an application given by the defendants to Tahasildar to prepare the sketch, the written statement filed in O.S.No.89/2003 filed by the Tahasildar and also the order passed by the Tahasildar in LNDCR 8/77-78.

¶112

In the cross-examination, he admits that in terms of Ex.P30, he gave a notice to do the land phodi. He claims that the grant which was cancelled in the year 1986 was re-granted. He admits that before the Tahasildar along with defendant Nos.1 to 3, he was also a party. He also admits that before the Tahasildar he made the statement on 28.04.2003 that his claim and also

¶113

¶114

the defendants' claim of objections are different. He admits that the property is distinct.

¶115

P.W.2 also examined by the plaintiff and he claims that 4 acres of land granted in favour of the plaintiff and on the east property of Nagarathnamma; on the west border of Kareem Sonnenahalli, on the north road and on the south hiduvali land, the same was granted in the year 1972-73. The Plaintiff herself was cultivating the land and defendant Nos.1 to 4 were not in possession.

¶116

In the cross-examination, P.W.2 admits that the land was granted in the year 1972-73 in total 5 persons to the extent of 20 acres. It is suggested that the grant was cancelled in the year 1986 that they were not in cultivation. He says he does not know about the same. However, he admits that he took the power of attorney on behalf of Nagarathnamma and admits that he is taking care of the land of Nagarathnamma and also admits on behalf of Nagarathnamma, he filed a case against the Tahasildar. He cannot tell in whose name the Khatha and Pahani stand. But he claims that it was in the name of Puttamma earlier and he cannot tell from the last four years in whose name it is

¶117

¶118

standing. He admits that he gave the application on behalf of Nagarathnamma along with Puttamma to cancel the Khatha and Pahani made in favour of the defendants.

¶119

D.W.1, who is the power of attorney holder claims that defendant No.1 is no more and his legal representatives are brought on record and all defendant Nos.1 to 4 have given power of attorney to give evidence in terms of Ex.D1. He admits in Gowdahalli village, in the Sy.No.5, the total extent of land is 60 acres. He also admits that his land was granted in favour of Shivamma, Shanthamma, Channappa, Puttamma and Nagarathnamma. In 1986, grant was cancelled on the ground that they were not cultivating the land and in favour of the plaintiff, the land was not re-granted. Earlier a suit filed in O.S.No.190/1991 was cancelled. The land was granted in favour of defendant Nos.1 to 4 and thereafter sketch also prepared and after the grant khatha stands in the name of the defendants and so also the RTC. It is contended that the plaintiff is not in possession and the defendants also not given any trouble to the plaintiff, but the plaintiff has filed an appeal before the Assistant Commissioner Court and also admits that this matter was

¶120

¶121

remanded to the Tahasildar to enquire into the matter. Through D.W.1, the documents - Ex.D2, grant made in favour of the defendants is produced and also produced the mutation extractEx.D3 and Ex.D4 to D27, are Pahanies. In the year 1995 sketch is prepared and the same is marked as Ex.D28.

¶122

One Srinivasappa filed an appeal challenging the said sketch and the appeal was dismissed and produced endorsement. As against the order of the Deputy Commissioner, a writ was filed and the writ was also dismissed. He also produced tax paid receipts at Exs.D32 to D39. He admits that the grant made by the Tahasildar was cancelled. The defendants also filed an appeal against the said order and produced the copy of the order in terms of Ex.D40. The Tahasildar re-granted the land in terms of Ex.D41. After the re-grant, the mutation is also made in terms of Exs.D42 to 44. The RTC extracts also marked as Exs.45 to 48. He also produced rejection of claim made by the plaintiff by the Land Grant Committee as Ex.D49 and the plaintiff is not having any right in the same survey number. He was subjected to cross-examination.

¶123

¶124

In the cross-examination, he admits that he has not

¶125

produced the document that defendant Nos.3 and 4 are not having prudent. It is suggested that defendant Nos.1 to 4 are not having any information and hence, he had obtained the power of attorney and the same was denied. He admits the total extent of land in Sy.No.5 is 60 acres and 14 guntas of land and also admits the grant made in the year 1973 in favour of five persons. The plaintiff is one among them. In terms of the grant, khatha was changed in favour of Puttamma and pahanies were standing from the year 1996. The Tahasildar order canceling the grant was challenged before the Assistant Commissioner. The Assistant Commissioner remanded the matter to the Tahasildar to hold an enquiry. He cannot tell when the file has reached the Taluka Office and also he is not aware of

¶126

the order passed by the Tahasildar. He admits that the Tahasildar cancelled the grant made in favour of the defendants and so also in respect of other 6 persons. In terms of the said order, mutation was also entered. He admits that civil suits are pending and hence, the application is also pending before the Tahasildar. He was further cross-examined. He admits that on 16.06.2003, the Tahasildar has passed an order that both the

¶127

¶128

properties of plaintiff and defendants are distinct and the same is based on 1995 sketch and in the said sketch the possession of the plaintiff and defendants are mentioned. It is suggested that in order to grab the land of the plaintiff which was granted is troubling the plaintiff, the said suggestion was denied. In the further examination, D.W.1 also produced the document Ex.D51 claiming that the land was re-granted in favour of defendant Nos.1 to 4. He was subjected to cross-examination.

¶129

In the cross-examination, he says that he is not aware of the Stay granted by the Assistant Commissioner. He admits that the Tahasildar in writing made the statement before the Civil Judge (Sr.Dn.) if document Ex.D51 order is contrary and the same can be cancelled. D.W.1 was further examined. In his evidence, he says that the appeal filed by the plaintiff before the Assistant Commissioner is in terms of Ex.D53 and the Tahasildar has confirmed the order of the Tahasildar and dismissed the appeal filed by Puttamma. He was subjected to cross-examination.

¶130

In the cross-examination, he admits that

¶131

Srinivasappa has filed a suit against him in O.S.No.368/1996

¶132

¶133

and the decree has been passed against him and he has not filed any appeal against Srinivasappa. He admits that no land was granted in favour of him and also he has not purchased any property from the defendants and also claims that he is not having any personal interest in Sy.No.5. It is suggested that the order passed in terms of Ex.D53 was stayed by the Deputy Commissioner. The defendants also examined one witness as D.W.2 and he claims that he is the owner of Sy.No.83 to the extent of one acre and he knows that the defendants are having the lands at Gowdahalli in Sy.No.5 and they are having one acre each and cultivating the same. The defendants’ land is on the northern side of his land. The plaintiff never cultivated the said land and the defendants are cultivating the same from the last 25 years. In the cross-examination, he admits that he cannot tell the total extent of Sy.No.5 and also he is not aware of how much land was granted in the said land and when it was granted and he cannot tell which crop was grown by the defendants. He is not aware of the decision given by the Court between the plaintiff and the defendants.

¶134

¶135

Having considered both oral and documentary

¶136

evidence placed on record and also the material available on record, it is not in dispute that the suit schedule property is allotted in favour of the plaintiff as Block No.1 in Sy.No.No.5 to the extent of 4 acres situated at Gowdahalli, Doddaballapura Taluk.

¶137

On perusal of the original grant order, no doubt, boundaries are not mentioned, but it is mentioned as per the sketch, the grant was made in the year 1976 in LND/SR/1635/72-73. The said grant order also marked as Ex.P2. It is also not in dispute that on 18.09.1986 in terms of Ex.P3, the Tahasildar cancelled the grant on the ground that the plaintiff is not cultivating the land and apart from the plaintiff other three grantees viz., Shanthamma, Channappa, Nagarathnamma, grant was also cancelled and mutation was entered in terms of Ex.P4. The rough sketch, which is marked as Ex.P5 discloses the identification of the property as Block No.1, 2, 3, 4 and 5. In total 20 acres of land was granted earlier.

¶138

The land holding certificate was also issued in terms of Ex.P6. It is pertinent to note that Ex.P3, the order passed by the

¶139

¶140

Tahasildar was challenged before the Assistant Commissioner. The Assistant Commissioner vide order dated 15.07.1987 in terms of Ex.P7, set aside the order of the Tahasildar by allowing the appeal and remanded back to the Tahasildar to make fresh enquiry to find out who was the cultivator and make necessary changes in the RTC as per law before cancelling the grant. Hence, it is clear that the order passed by the Tahasildar cancelling the grant was set aside. The plaintiff has also produced Ex.P8, an endorsement given by the Tahasildar stating that the matter is pending before the Court and hence the decision is not taken. Hence, kept the decision holding of an enquiry is pending. It is also important to note that an application is given to the Tahasildar by the appellant and also others and in terms of Ex.P9 an order has been passed restoring the grant in respect of other applicants and the Tahasildar kept the same pending in respect of respondent No.1/plaintiff.

¶141

It is also important to note that the document reveals that the grant made in favour of the defendants/appellants were also cancelled and the same has been questioned and the appellants also admit that the matter is

¶142

¶143

pending before the KAT and till date no decision has been taken. When such being the facts and circumstances of the case and it is also not in dispute that from the date of grant till 1996, all the revenue records standing in the name of the plaintiff. No doubt, the plaintiff earlier filed a suit in O.S.No.190/1991 and O.S.No.269/1994. Earlier suits ware withdrawn. It is also pertinent to note that the document – Ex.P47, which is the proceedings of the Tahasildar, an application was given by the grantees of 10 persons, wherein, they claimed their properties distinct from the properties of suit schedule property. The Tahasildar also in his order in Ex.P47, held that the land granted in favour of the grantees in LNDCR 8/77-78 and also the respondents are distinct, the same is also taken note of by the Trial Court while considering the case on record i.e., the evidence of P.W.1 and also the evidence of D.W.1 and comes to the conclusion that both are distinct properties.

¶144

D.W.1, who is the power of attorney holder of defendants. In the cross-examination, he categorically admits that the Tahasildar cancelled the grant made in favour of the plaintiff and other three persons and also admits that the land

¶145

¶146

was granted in favour of defendant Nos.1 to 4 and after the grant inspected the property and prepared the sketch. It is elicited in the cross-examination that the total extent of land in Sy.No.5 is 60 acres and 14 guntas and out of the same in the year 1973, the land was granted in favour of five persons including the plaintiff and also khatha was changed in her favour and also all the revenue records stood in the name of the plaintiff till 1996. He also admits that an appeal was filed before the Assistant Commissioner. The Assistant Commissioner set aside the order and remanded the matter to the Tahasildar and also he categorically admits that he does not know about any further order passed by the Tahasildar. He also admits that the Tahasildar on 16.06.2003 passed an order that the land granted in favour of plaintiff and defendants are distinct properties. He also admits that in terms of the survey sketch of 1995, the Tahasildar passed such an order. He also admits that in the said survey sketch, the cultivation of plaintiff and defendants has been clearly earmarked. The answer elicited from the mouth of D.W.1 is also taken note of by the Trial Court.

¶147

¶148

The defendants also examined one witness as D.W.2. He deposes that the defendants are cultivating the suit schedule property one acre each. But in the cross-examination, he cannot tell what was the extent granted in Sy.No.5. He also admits that he cannot tell in which year what are all the crops are grown in the said property.

¶149

Having considered the evidence of D.W.2 regarding cultivation is concerned; the evidence of D.W.2 will not help D.W.1. It is also important to note that the defendants have not appeared before the Court and instead of that they have executed the power of attorney in favour of D.W.1.

¶150

39. Having considered the evidence available on record,

¶151

it is clear that the land was granted to the plaintiff in the year 1976 and the rough sketch was also shown as boundaries in respect of the property granted in favour of the plaintiff. It is also important to note that in terms of Ex.P47, the very Tahasildar after making inspection passed an order that the property granted in favour of the plaintiff and defendants are distinct properties. It is also important to note that the order of

¶152

¶153

cancellation of grant made by the Tahasildar was set aside by the Assistant Commissioner in terms of the order Ex.P7 immediately after cancellation of the grant. Admittedly, the matter was remanded to the Tahasildar and also the cancellation order was set aside by the Assistant Commissioner in terms of Ex.P7 and the matter was remanded to the Tahasildar and the Tahasildar has not taken any decision. When such being the case, the grant is in favour of plaintiff and ultimate decision was not taken and the records also reveal that an endorsement was issued since the suit was pending before the Court and the decision was not taken. Apart from that, the defendants grant made in their favour was also set aside and the learned counsel for the appellants also admittedly makes the submission that the matter is pending before the KAT with regard to the cancellation of the grant made in favour of the defendants. When such being the facts and circumstances of the case, I do not find any merit in the appeal to reverse the finding of the Trial Court. The Trial Court has given the finding considering the grant made in favour of the plaintiff and also setting aside the order of the Tahasildar i.e., cancellation of grant made in favour of plaintiff and remanded the matter to the Tahasildar. Apart from that, taken

¶154

¶155

note of the document – Ex.P47, wherein, the Tahasildar himself after the inspection passed an order that both the properties are distinct properties. The appellants also in the appeal contend that the appellants’ property is on the western side and the property of the plaintiff is on the eastern side.

¶156

The learned counsel for respondent Nos.2 and 3/State also not disputes the fact that there is a dispute regarding identification. When such being the facts and circumstances of the case, I do not find any force in the contention of the learned counsel for the appellants to set aside the judgment and decree of the Trial Court. The determination of the right of the defendants is also pending before the KAT as contended by the appellants. When such being the case, there is no reason to reverse the findings of the Trial Court at this juncture.

¶157

The other contention of the learned counsel for the appellants is that the Trial Court ought not to have entertained the suit and in support of his contentions, he relied upon the judgments referred supra and no doubt in the said judgment,

¶158

¶159

this Court considered Section 61 of the Karnataka Land Revenue Act, 1964. But in the case on hand, already there was a grant and though the same was cancelled and subsequently, the cancelled order was set aside by the Assistant Commissioner and the matter was remanded to the Tahasildar and not yet taken any decision and an endorsement was issued that the matter is still pending before the Civil Court. Under the circumstances, the contention of the learned counsel for the appellants that the Trial Court ought not to have entertained the civil suit and there is a bar cannot be accepted and if that contention is taken after the final decision then there would have been a force in the said contention. Having considered both oral and documentary evidence and the grounds urged in the appeal, I do not find any merit in the appeal.

¶160

Point No.(iv):

¶161