Dismissed

Sri Badumanda Uthaiah v. Sri Manira Muthanna @ Vasu

Karnataka HC7 Jan 2021RFA/281/2006

Case brief

AI extract

What is this about?

The High Court dismissed an appeal against a trial court decree in a property dispute concerning 'bane land'. The trial court granted permanent injunctions to both parties, allowing possession but refusing declarations of title. The High Court upheld this, ruling the appeal devoid of merits.

What did the court decide?

The appeal was rejected, upholding the trial court's order granting permanent injunction and denying declaration of title.

Sri Badumanda Uthaiah Vs Sri Manira Muthanna @ Vasu — Partition | Karnataka HC (2021)

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 7^TH DAY OF JANUARY, 2021

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BEFORE

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

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RFA.NO.281 OF 2006

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Between:

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Sri. Babumanda Uthaiah, Son of late Ponnappa Age about 53 years West Nemmale Village, Nemmale Post, Srimangala Nad, S.Kodagu-571218.

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…Appellant

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(By Sri. Sreeprasad S.R., Advocate)

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And:

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Sri. Manira Muthanna @ Vasu Aged about 55 years,

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Sri. Manira Vijaya @ Rajumt. Pushpavathi, Aged about 44 years,

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Sri. Manira Biddappa @ Raghu, Aged about 40 years,

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All children of Late Nanjappa, West Nemmale Village, Nemmale Post, Srimangala Nad, S.Kodagu-571218.

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…Respondents

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(By Sri. M.U.Poonacha, Advocate for R1, R2 and R3 are served)

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This RFA is filed under Section 96 of CPC against the judgment and decree dated 02.09.2005 passed in O.S.No.38/2000 on the file of the Prl. Civil Judge (Sr. Dn.), Virajpet, partly allowing the suit for declaration and permanent injunction.

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This RFA is coming on for hearing this day, through video conferencing the court delivered the following:

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JUDGMENT

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The appeal is directed against judgment and decree dated 02.09.2005 passed in O.S.No.38/2000 by the learned Civil Judge (Sr.Dn), Virajpet, where in the suit of the plaintiff and counter claim of 1^st defendant is allowed. The operative portion of the judgment is as under:

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ORDER

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The suit of the plaintiff and counter claim of the first defendant is hereby allowed in part and ordered the defendants 1 to 3 by issue of permanent injunction restraining them, their servants and agents from interfering or disturbing the plaintiff’s lawful possession and enjoyment of the suit schedule property.

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It is hereby order the plaintiff by issue of permanent injunction restraining him from interfering with the possession of the first defendant over the counter claim schedule property.

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It is hereby order to refuse to grant the relief of declaration of title sought by the plaintiff in respect of the plaint schedule property and sought by the first defendant in respect of the counter claim schedule property.

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In view of the peculiar circumstances, this Court direct parties to the suit to bear their own costs.

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Draw decree accordingly.

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2. Being aggrieved by the same, the plaintiff

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has presented this appeal.

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Originally O.S.No.38/2000 was filed by Badumanda Uthaiah S/o Late Ponnappa against Manira Muthanna @ Vasu and two others for declaration and permanent injunction of the suit schedule property, which is as under:

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SCHEDULE

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The Jamma Bane Lands bearing Sy.No.180/1C1 of 2.00 Acres out of 39.39 Acres with the thatched shed bounded by:-

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East: Sy.Nos.180/7, 180/8 and 180/12

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West: Remaining portion of the bane & North: Lands bearing Sy.No.180/1C1 And South: by Sy.Nos.180/7 and 180/13.

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The above said properties are separately fenced and demarcated, situated at west Nemmale village, Srimangala Nad, S.Kodagu.

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The defendants entered appearance, filed their written statement and also sought counter claim for declaration contending that first defendant is the owner in possession of the written statement schedule property mentioned below:

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“ 2.75 acres of bane land out of 52.70 acres of Sy.No.180/1 of west Nemmale Village bounded on the east by Abbi Thodu and wet lands of Kariappa, west by

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Kaithodu, South by Sy.No.180/4 and north by remaining area in Sy.No.180/1”.

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The substance of the pleading of both the parties is that the plaintiff claims that he is the owner in possession of suit property and also the land in Sy.No.180/7, 180/8, 180/12 to the extent of 2 acres out of 39 acres 39 guntas. The property is stated to contain a thatched shed.

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Similarly in the counter claim the defendant seeks for declaration of title with possession and also permanent injunction in respect of 2.75 acres of land out of 52 acres 70 guntas in Sy.No.180/1. In this connection, the source of title claimed by the plaintiff in respect of plaint schedule property (Schedule I) that there was an oral partition in the year 1982 in the family of the plaintiff and the schedule property along with the other properties came to the share of the plaintiff and he has been enjoying the same.

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The defendant denies the averments of the said claim. At the same time, the defendants claim that as per the registered sale deed dated 4.3.1985, the first defendant purchased 2.5 acres of land in Sy.No.180/14 and 2.75 acres in Sy.No.180/1, which is out of 52.70 acres of Sri. Badumanda Uthaiah and his brother Appacha and is in possession of the land. The property which the defendant purchased in Sy.No.180/1 is said to be a bane land and requires the permission of the government for transfer from one person to another. The bane land of 2.75 acres though was transferred by way of registered sale deed by Badumanda Uthaiah is admitted in the written statement. Permission is yet to be obtained.

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The learned trial Judge on the basis of the pleadings and contentions of the parties, framed the following:

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ISSUES

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1. Whether the plaintiff proves that he acquired the suit property in a partition

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between himself, his father Ponnappa and his brothers and thereby he became the absolute owner of the suit schedule properties as fully described in the plaintiff schedule?

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2. Whether the plaintiff further proves that he is in actual possession and enjoyment of the suit property?

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3. Whether the defendants prove that the suit property is a part of Sy.No.180/1 of west Nemmale village purchased by 1^st defendant under a registered sale deed dated 4.3.1985 from Badumanda Machaiah and his brother Appacha as contended in his counter claim?

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4. Whether the defendants further prove that they are the owners of Sy.No.180/14 measuring 2.50 acres of wet land and Sy.No.180/1 measuring 2.75 acres of bane land as mentioned in the schedule of the Written Statement and the said properties acquired by 1^st defendant under a registered sale deed dated 04.03.1985 as alleged?

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5. Whether the plaintiff proves the illegal interference of the defendants?

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6. Whether the defendants prove that the plaintiff illegally interfered with his possession over the written statement schedule properties?

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7. Whether the plaintiff is entitled for the relief of declaration and permanent injunction sought for?

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8. Whether the counter claims filed by the defendant is valid and thereby the 1^st defendant is entitled for relief of declaration is entitled for relief of declaration and permanent injunction sought for?

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9. What order or a decree?

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The learned trial Judge considering the

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oral evidence of PW1 & PW2 and documentary evidence of Exs.P.1 to P7 on behalf of plaintiff and oral evidence of DW1 to DW6 and documentary evidence of Exs.D1 to D6 on behalf of defendants, decreed the suit of the plaintiff as prayed for in respect of the plaint schedule-I and in respect of written statement counter claim schedule, it was partly allowed. The relief of declaration of title was

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not granted and it was decreed exclusively for permanent injunction only. Aggrieved by the same, plaintiff has presented this appeal.

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Learned counsel for the plaintiff Sri. S.R.Sreeprasad would submit that non-transferable land was transferred in gross violation of the Government regulation. The registered sale deed does not confirm right on the defendant. Moreover in the guise of making the counter claim of schedule No.2, the defendant is trying to trespass into the plaint ‘A’ schedule property.

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Learned counsel Sri. M.U.Poonacha for the defendant No.1 would submit that there is no law prohibiting purchasing of the suit property mentioned in the written statement counter claim. On the other hand it was purchased under the registered sale deed from Badumanda Uthaiah under the registered sale deed and that such kind of transfers cannot be allowed and the defendant cannot be restrained. The learned counsel further

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submits that the plaintiff cannot and does not claim title over the written statement schedule property. Now the question is the land of different nomenclature, bane land, it is stated to be government property and a portion of the land abutting the private land which is required for the service of the main owner land, the benefits from bane land can be taken, however no one can claim ownership right over the property. Perhaps it is similar to kunki land which is for the benefit of varga land or may not be absolutely equal to it.

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Now the point that arises is plaintiff does not claim an inch of land in the suit schedule properly, nor denies the title of the same. The suit has been decreed in favour of the plaintiff and that is not appealed by the defendant. In so far as the suit filed by the 1^st defendant which is in the form of counter claim wherein declaration and injunction were sought.

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The learned trial Judge granted relief of permanent injunction and refused to grant the declaration. In this connection, it was the contention of Sri. Sreeprasad that there is no extent of bane land and the sale deed is only a fictitious one. In this connection, he further submits in the guise of injunction to the written statement schedule property, the plaintiff would trespass over the plaint schedule property because as per the schedule the defendant claims bane land between the property of the plaintiff in the plaint schedule and the own land of defendant No.1. The apprehension of the plaintiff is that the defendant in all probability is trying to encroach on the property of the plaintiff claiming the same as bane land of 2.75 acres in Sy.No.180/1.

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This cannot not be done, the plaintiff is already protected by an order of temporary injunction and the declaration of title and for this property it is not even challenged by the defendant. So the plaintiff has several alternatives to prevent trespass.

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15. This pertains to the bane land which has

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been sold by way of registered sale deed. When a person cannot own a land, the private people cannot create title over the properties in respect of individual. When it is government land if at all qualifies for allotment, it is the decision of the government that decides the fate. Understandably injunction by the defendant is counter claim is not made against government. When it is bane land or incapable of being claim as own land it is also subject to rules of government, grant or eligible to the extent of bane land. The plaintiff is a private party and also the defendant is a private party. Each of them do not claim right over the properties of the others, but it is on mutual apprehension. When the matter has been put at rest by disposal of the case wherein original suit filed by the plaintiff for declaration of the plaint schedule property was decreed and the counter claim of the defendant No.1 in respect of declaration of ownership is rightly denied and the question of permanent injunction is being granted to the

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defendant. This may not be a fit case for challenging without any apprehension well founded, being there, besides, being equipped with decree for declaration and title for the plaintiff. I do not find the trial Judge was wrong in granting permanent injunction and refusing declaration.

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Summing up of the judgment and decree by the learned trial Judge it is clear, in the sense the plaintiff has also sought for declaration of title in respect of the suit property which is also is a bane land and injunction against the defendant. Incidentally when the nature of the land is bane land, and lands of the 1^st defendant and the plaintiff both are bane in nature, the permission of the government is necessary to own the same. The ownership lies with the government. Both the plaintiff and the 1^st defendant are claiming relief. The permanent injunction sought by the plaintiff is exclusively in favour of the defendant and vice versa. The learned trial judge has rightly rejected the suit for

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declaration, title of bane land, both have stated in the plaint schedule and in the schedule to written statement as counter claim. The defendants have not challenged the grant of permanent injunction in favour of the plaintiff for the reasons best known to them. However there is no ground calling interference in the judgment and decree of the trial court. Appeal is devoid of merits. Hence, it is rejected.

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Sd/JUDGE

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Sri Badumanda Uthaiah v. Sri Manira Muthanna @ Vasu

Case brief

What is this about?

What did the court decide?

Sri Badumanda Uthaiah v. Sri Manira Muthanna @ Vasu

Case brief

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What did the court decide?

What the court decided

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