Dismissed

Kunchanna Gowda v. K. v Ganapayya

Karnataka HC25 Oct 2021RSA/1161/2018

Case brief

AI extract

What is this about?

The single judge of the Karnataka High Court dismissed an appeal filed against decrees in a suit for declaration and recovery of possession. The appellant challenged the trial court's finding that he was a licensee and the applicability of the Karnataka Land Reforms Act. The court held no substantial question of law. Appeal dismissed.

What did the court decide?

Appeal dismissed; cost of the suit to be borne by the parties.

Kunchanna Gowda Vs K. v. Ganapayya — Landlord and Tenant | Karnataka HC (2021)

¶1

IN THE HIGH COURT OF KARNATAKA AT BENGALURU

¶2

DATED THIS THE 25^TH DAY OF OCTOBER, 2021

¶3

BEFORE

¶4

THE HON’BLE MR. JUSTICE PRADEEP SINGH YERUR

¶5

REGULAR SECOND APPEAL No.1161 OF 2018 (POS)

¶6

BETWEEN:

¶7

KUNCHANNA GOWDA S/O KRISHNAPPA GOWDA AGED ABOUT 55 YEARS R/AT ALAJE HOUSE MURULYA VILLAGE, SULLIA TALUK D.K.DISTRICT - 574238 ... APPELLANT

¶8

(BY SRI RAVISHANKAR SHASTRY, ADVOCATE)

¶9

AND:

¶10

K.V.GANAPAYYA S/O LATE K.S.VENKAPPA BHAT AGED ABOUT 89 YEARS R/AT ALAJE HOUSE MURULYA VILLAGE & POST SULLIA TALUK, D.K. DISTRICT PIN - 574238 … RESPONDENT

¶11

(BY SRI K.RAVISHANKAR, ADVOCATE)

¶12

¶13

THIS REGULAR SECOND APPEAL IS FILED UNDER SECTION 100 OF THE CODE OF CIVIL PROCEDURE AGAINST THE JUDGMENT AND DECREE DATED 01.03.2018 PASSED IN RA.NO.73/2004 ON THE FILE OF THE SENIOR CIVIL JUDGE AND JMFC SULLIA, D.K.DISMISSING THE APPEAL AND CONFIRMING THE JUDGMENT AND DECREE DATED 09.03.2004 PASSED IN OS.NO.172/99 ON THE FILE OF THE CIVIL JUDGE (JR.DN) AND JMFC, SULLIA, D.K.

¶14

THIS APPEAL COMING ON FOR ADMISSION, THIS DAY, THE COURT DELIVERED THE FOLLOWING:

¶15

¶16

J U D G M E N T

¶17

Defendant has preferred this appeal being aggrieved by the judgment and decree passed by the Civil Judge (Jr.Dn.) JMFC, Sullia, Dakshina Kannada, in original Suit No.172/1999 dated 09.03.2004, wherein the suit filed by the plaintiff came to be decreed. Aggrieved by the said decree, the defendant had preferred an appeal in RA No.73/2004 before the First Appellate Court, which came to be dismissed on 01.03.2018 by the Learned Senior Civil Judge, Sullia, Dakshina Kannada. It is these two concurrent judgments against the defendant that is laid in the challenge before this Court.

¶18

Brief facts leading to the filling of the appeal are as under:

¶19

The respondent plaintiff had filed the suit against the appellant/defendant claiming that he is the absolute owner of the plaint ‘A’ schedule premises bearing No.01/90 of Murulya village Panchayat situated in Survey No.90/8(P) of Murulya village, which is in the southern portion of thatched house building. It is the contention of the plaintiff that the defendant is in possession of the said premises as a licensee with the permission of plaintiff since 1995 and prior

¶20

¶21

to that, defendant was residing along with his father in separate premises since 1970. It is also stated that the defendant was employed as a helper in Edamangala Service Co-operative Society and when he had occupied the suit schedule premises of plaintiff he was attending the work under the plaintiff. It is case of the plaintiff that the defendant was permitted to reside in the premises without charging any rentals with the condition that he would keep the premises in a good condition and vacate the same as and when demanded by the plaintiff. As the defendant was acting detrimental, plaintiff filed a case in original suit No.124/2019 against the defendant and his father which was filed for the relief for permanent injunction and the same came to be decreed and confirmed in the First Appellate Court. The second appeal preferred against the said judgment by the defendant herein is pending adjudication. It is pursuant to that the present suit is filed for declaration and to hand over the present possession of the suit schedule premises.

¶22

On service of notice, defendant appeared before

¶23

the Court and filed written statement denying the claim made by the plaintiff and contended that the defendant was

¶24

¶25

residing in the suit schedule premises which is a part of 1.01 acres of land which was being cultivated by the defendant in the capacity of a tenant under the tenancy laws. He also contended that the tenancy dispute between the parties was to be decided by Land Tribunal and the Trial Court does not have jurisdiction as contemplated under Section 133 of Karnataka Land Reforms Act 1961. It is further stated that he has been enjoying the suit schedule premises i.e., the land in tenancy for over 35 years without interruption by the plaintiff and therefore he has acquired the right over the premises by way of adverse possession alternatively. On the basis of these pleadings, the Trial Court framed the following issues

¶26

1. Whether the plaintiff proves that plaint ‘A’ schedule house belongs to him?

¶27

2. Whether the plaintiff proves that the defendant is in permissive occupation of the suit house since January 1995?

¶28

3. Whether the defendant proves that he has perfected his right over the suit house by way of adverse possession?

¶29

4. Whether the plaintiff proves that he is entitled for recovery of vacant possession of the suit house?

¶30

¶31

5. Whether the plaintiff is entitled for mesne profits? If yes, to which rate?

¶32

6. What decree or order?

¶33

In order to prove the case, the plaintiff examined himself as PW-1 and got marked Ex.P1 to P7. Whereas the defendant examined himself as DW-1 and got marked the documents as Ex.D1 to D36. After hearing the learned counsel appearing for the parties, the Trial court decreed the suit of plaintiff and held that the defendant was residing in the premises as licensee with the permission of plaintiff and accordingly ordered the defendant to vacate and handover the vacated possession of the suit schedule house property within three months and to pay mesne profit Rs.150/- per month till handing over the possession to the plaintiff.

¶34

Aggrieved by the said judgment and decree of the Trial court the defendant preferred appeal before the First Appellate Court in Regular Appeal No.73/2004, which on reappreciation of evidence and the entire material documents placed on record came to be dismissed on 01.03.2018.

¶35

It is the contention of the learned counsel appearing for the appellant/defendant that the judgment

¶36

¶37

and the decree passed by both the Courts below are opposed to law and the Courts have erred in appreciating the factual evidence and law. Therefore they are erroneous and the same deserve to be set aside. He further contended that the Trial Court does not have the jurisdiction in view of the bar under Section 132 of Karnataka Land Reforms Act 1961 and no issues have been framed by the Trial Court which has led to mis-carriage of justice and consequently a legal perversity is committed by the Courts below. He further contends that plaintiff has cleverly drafted the suit to show that he is in possession of house situated in No.90/8(P) Murulya village, Sullia taluk, Dakshina Kannada, which is portion of larger extent of 1.01 acres of land in which the defendant is claiming tenancy before the prescribed Statutory Authority and the Form No.8 is pending before the Competent Authority. These being the facts of the case, the Trial Court ought not to have entertained the suit itself till the application in form No.7A is decided by the concerned competent authority.

¶38

Learned counsel further contended that plaintiff has established his relationship with the defendant as licensee and licensor and there are no documents to

¶39

¶40

overcome with regard to relationship so alleged by the plaintiff. On the contrary it is the case of the defendant that he is in possession of 1.01 acres of land survey No.90/8 (P) (stated supra) in which the suit schedule property mentioned herein is a portion of larger extent of the property. He further contends that the plaintiff has suppressed these material facts before the Court and has not approached the Court with clean hands. He also submits that the plaintiff has admitted in the crossexamination in the other suit filed which was marked as Ex.D1, wherein it is the say of the plaintiff that though defendant was the tenant with regard to the land property, both Courts have failed to consider the aspects of admission made by the plaintiff. Therefore he seeks to allow this appeal as there is substantial question of law that has arisen before this Court to consider that both the Courts below have erred in not taking into consideration the bar of Civil Court jurisdiction under Section 132 of Karnataka Land Reforms Act, 1961 and have proceeded with the judgment, though there was no jurisdiction for the Court to deal with the matter.

¶41

¶42

Per contra leaned counsel appearing on behalf of respondent/plaintiff supports the judgment and decree passed by both the Courts and contends that there is no dispute with regard to the ownership of the suit schedule property of the plaintiff. According to the defendant there is no denial with regard to the plaintiff being the owner of the suit schedule property. Infact the claim made by the defendant in the appeal before the Trial Court as an alternate plea is adverse possession. The said plea itself conveys a legal admission of the ownership of the plaintiff by the defendant categorically. Learned counsel further contends that this suit schedule property is not a portion of 1.01 acres in survey No.90/8(P) (stated supra) that it is a separate property as stated in the plaint. He contends that the defendant has made all the efforts to confuse the Court with regard to tenancy applied by him for other extent of the property. It is further contended that apart from mentioning that Form No.7 has been filed before the Competent Authority, no other documents have been filed by the defendant before the Trial Court or before the First Appellate Court and even before this Court to show his right over the suit schedule property and it is also contended that no documents have been produced to show that

¶43

¶44

defendant has been enjoying the land in survey No.90/8(P) measuring 1.01 acres of Sullia village belonging to the plaintiff for more than 35 years as tenants. On the basis of these submissions, learned counsel contends that both the Courts below have rightly concluded that the defendant has not produced any material documents to show his right over the suit schedule property. Moreover he has admitted ownership of the plaintiff and having taken the plea for adverse possession, it will not lie in the mouth of the defendant to say that the suit decreed in favour of the plaintiff and confirmed by the First Appellate Court is illegal or perverse.

¶45

Having heard the learned counsels for the appellant/ defendant and respondent/plaintiff, points that arise for consideration before this court are:

¶46

1. Whether any substantial question of law arises in present appeal calling for interference of this Court?

¶47

2. What order?

¶48

It is not in dispute that the plaintiff is the absolute owner of the suit schedule property, which is the thatched house. It is the claim of defendant that he is a tenant with regard to 1.01 acres of land in survey No. 90/8

¶49

10 -

¶50

(P) and also he has filed Form No.7 as tenant before the Competent Authority under the Karnataka Land Reforms Act. The defendant has admitted the ownership of plaintiff with regard to suit schedule property. The defendant has claimed adverse possession as alternative plea before the Court. It is clearly stated that the plaintiff has been paying tax to the Panchayat relating to the suit schedule property. Apart from producing RTC, defendant has not produced any material to show before this Court that he is the owner having claimed adverse possession to that of the plaintiff. The plaintiff and the defendant have laid material before the Court which has been considered before the Trial court and based on the trust-worthy evidence of both the parties, the Trial court has come to the conclusion that the defendant already suffered the order of permanent injunction in 124/1999, which came to be decreed in favour of the plaintiff and having affirmed in first appellate Court; the same is pending before this court in second appeal.

¶51

Having considered the entire material evidence

¶52

both oral and documentary, the Trial Court came to the conclusion that the defendant was residing in the suit schedule property as a licensee with the permission of the

¶53

11 -

¶54

plaintiff and since he has not handed over the possession, notice was issued by the plaintiff. The Court passed an order directing the defendant to vacate the suit schedule property and pay mesne profit of Rs.150/- per month from the date of occupancy till handing over the possession. It is also relevant to state that the issues framed by the Trial Court does not in any way deal with the aspect of 1.01 acres of tenancy so claimed by the defendant in survey no. 90/8(P) of Murulya village. The entire dispute with regard to the suit schedule property was only the possession of house property. The issue with regard to the defendant having preferred his right by way of adverse possession also came to be dismissed and rejected.

¶55

Being aggrieved by the findings of the Trial

¶56

court, the defendant had approached the First Appellate Court. That the First Appellate Court considered the entire material documents both oral and documentary and after re-appreciating and re-evaluating entire materials on record, clearly held that the instant suit schedule property is not a land as it was a thatched house property and even for the sake of arguments consideration of the plea with regard to Section 132 of Karnataka Land Reforms Act, the

¶57

12 -

¶58

same would not be applicable to the instant case, as the present suit schedule property is not a land but only a thatched house property and the Trial Court would certainly have no jurisdiction as contemplated under Section 133 of Karnataka Land Reforms Act. The First Appellate Court after having dealt with the matter elaborately came to the conclusion that the possession of a person over a property without there being any title would be permissive to that of title holder and real owner of the property in such capacity. It is the duty of the defendant to prove before the Trial Court that he is not entitled to be ejected/evicted from the suit schedule property for the reasons stated by him. In the present case, the defendant having admitted the ownership of the plaintiff and having claimed plea of adverse possession, failed to establish that he had perfected ownership of the suit schedule property. The First appellate Court also has rightly held that the defendant has not produced any material to show that he is in possession of the suit schedule property by way of rental or valid agreement. Without this being proved and non-production any material produced to that effect, the defendant cannot seek the benefit of adverse possession of the suit schedule property.

¶59

13 -

¶60

In the light of the above facts and discussions, it is necessary to have a look at the provisions of Sections 132 and 133 of the Act which reads as under:

¶61

“132. Bar of Jurisdiction.−(1) No civil court shall have jurisdiction to settle, decide or deal with any question, which is by or under this Act required to be settled, decided or dealt with by the Deputy Commissioner, (an officer authorized under sub-section (1) of Section 77, the Assistant Commissioner, the prescribed authority under Section 83) (the Tribunal). (the Tahsildar), the Karnataka Appellate Tribunal or the State Government in exercise of their powers of control.

¶62

(2) No order of, the Deputy Commissioner, (an officer authorized under sub-section (1) of Section 77, the Assistant Commissioner, the prescribed authority under Section 83), (the Tribunal), (the Tahsildar), the Karnataka Appellate Tribunal, or the State Government made under this Act shall be questioned in any civil or criminal court.

¶63

133. Suits, proceedings, etc., involving questions required to be decided by the Tribunal.−(1) Notwithstanding anything in any law for the time being in force,−

¶64

14 -

¶65

(i) no Civil or Criminal Court or officer or Authority shall, in any suit, case or proceedings concerning a land, decide the question whether such land is or is not agricultural land and whether the person claiming to be in possession is or is not a tenant of the said land from prior to 1^st March 1974;

¶66

(ii) such Court or officer or Authority shall stay such suit or proceedings in so far as such question is concerned and refer the same to the Tribunal for decision;

¶67

(iii) all interim orders issued or made by such Court, officer or Authority, whether in the nature of temporary injunction or appointment of a Receiver or otherwise, concerning the land shall stand dissolved or vacated, as the case may be;]

¶68

(iv) the Tribunal shall decide the question referred to it under clause(i) and communicate its decision to such Court, officer or Authority. The decision of the Tribunal shall be final.

¶69

(2) Nothing in sub-section (1) shall preclude the Civil or Criminal Court or the officer or authority from proceeding with the suit, case or proceedings in respect of any

¶70

15 -

¶71

matter other than that referred to in that subsection.”

¶72

Having considered all these aspects and having dealt with the matter in detail on factual aspects and legal aspects, I do not find any illegality or perversity committed by the Courts below.

¶73

It is vehemently contended by the learned counsel for appellant that substantial question of law arises in this case with regard to the Bar of jurisdiction of the Trial Court under Section 132 of Karnataka Land Reforms Act 1961 and this aspect of the matter has not been dealt with by both the Courts below and the same has not been considered both on factual aspect as well as legal aspect. On careful perusal of the pleadings and the documents produced by the defendant, I do not find any substantial question of law arising from the dispute between the parties. So also no such substantial question of law has been brought before this Court which requires consideration by this Court. Question of law, as stated by the judgment of Hon’ble Apex Court and as contemplated under the Code of Civil Procedure has to be substantial in nature and which has not been either decided by Hon’ble Apex Court or by this Court and the same despite materials placed should

¶74

16 -

¶75

have been ignored by both the Courts below. In the present case on hand having considered submission of the learned counsel appearing for the appellant, having perused the entire material on record, I am of the opinion that there is no such substantial question of law made out for consideration of this Court. Trial Court as well as the First Appellate Court have dealt with the matter elaboratively considering both question of law and facts in accordance with law. Appeal lacks merit, no question of Law is made out, much less substantial question of Law.

¶76

Accordingly, I pass the following:

¶77

ORDER

¶78

Appeal is dismissed.

¶79

The parties to bear their own cost.

¶80

Pending IA shall be consigned to records.

¶81

Sd/-

¶82

JUDGE

¶83

GVP

Kunchanna Gowda v. K. v Ganapayya

Case brief

What is this about?

What did the court decide?

Kunchanna Gowda v. K. v Ganapayya

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Statutes considered

Parties & counsel

Coram

Case details

Similar cases

Smt. H S Jaya @ Jayamma Vs Smt. Pushpa

H P Laxmamma Vs R Narasimhamurthy

Peer Ahamed Vs Kadappara Gangamma

Sri. Vaterira Ganapathy Vs Smt. Vaterira Jyothi Mandanna

K J Devadiga Vs M Gurudatta Kamath

Smt Lakshmamma Vs Putta Linga Shetty