Dismissed

The Assistant Director of Horticulture v. Smt. Chikkamma

Karnataka HC16 Apr 2021RSA/1505/2019

Case brief

AI extract

What is this about?

In a regular second appeal challenging a decree for declaration of title and mandatory injunction, the bench dismissed the appeal. It held that, due to the defendants' continuous failure to file a written statement, lead evidence, or promptly raise maintainability objections, their belated application for additional documents was rejected, and the lower courts' finding of the plaintiff's title sto

What did the court decide?

Additional documentary evidence application rejected; the regular second appeal was dismissed.

The Assistant Director of Horticulture Vs Smt. Chikkamma — Property and Title | Karnataka HC (2021)

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

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DATED THIS THE 16^TH DAY OF APRIL 2021

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BEFORE

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THE HON’BLE MR.JUSTICE NATARAJ RANGASWAMY

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REGULAR SECOND APPEAL NO.1505 OF 2019

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BETWEEN:

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THE ASSISTANT DIRECTOR OF HORTICULTURE YALACHANAHALLI HORTICULTURE ZONE, MYSURU TALUK, MYSURU-571101.

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THE SENIOR ASSISTANT DIRECTOR OF HORTICULTURE STATE ZONE, KARJAN PARK, MYSURU-570001.

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THE SECRETARY DEPT. OF HORTICULTURE, M.S. BUILDING, AMBEDKAR VEEDHI, BENGALURU-560001.

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THE SPECIAL OFFICER HORTICULTURE COLLEGE, GOVERNMENT SILK BOARD, THANDAVAPURA, NANJANAGUD TALUK, MYSURU-561301.

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(PRESENT ADDRESS)

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DEAN, THE SPECIAL OFFICER,

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HORTICULTURE COLLEGE, YALACHANAHALLI, HORTICULTURE ZONE, MYSURU TALUK, ELAWALA HOBLI.

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…APPELLANTS

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(BY SMT. JYOTHI BHAT, HIGH COURT GOVERNMENT PLEADER) AND:

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SMT. CHIKKAMMA W/O. KALEGOWDA AGED ABOUT 87 YEARS, MAINDANAHALI VILLAGE, YELWALA HOBLI, MYSURU TALUK, MYSURU-571130.

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…RESPONDENT

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(BY SMT. GEETHA DEVI M.P., ADVOCATE)

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THIS REGULAR SECOND APPEAL IS FILED UNDER SECTION 100 READ WITH ORDER XLIII OF THE CIVIL PROCEDURE CODE, 1908 AGAINST THE JUDGMENT AND DECREE DATED 28.04.2018 PASSED IN R.A.NO.646/2016 ON THE FILE OF THE VII ADDITIONAL DISTRICT JUDGE, MYSURU ALLOWING THE APPEAL AND SETTING ASIDE THE JUDGMENT AND DECREE DATED 05.12.2015 PASSED IN O.S.NO.460/2013 ON THE FILE OF THE ADDL. II CIVIL JUDGE, AT MYSURU.

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

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JUDGMENT

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This appeal is filed by the defendants challenging the

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judgment and decree passed by the First Appellate Court in R.A. No.646/2016 by which it set aside the judgment

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and decree of the Trial Court in O.S. No.460/2013 and decreed the suit of the plaintiff for declaration and mandatory injunction.

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The parties shall henceforth be referred to as

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they were arrayed before the Trial Court.

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The plaintiff claimed that the land bearing Sy.No.28 of Yalachahalli, Ilawala Hobli, Mysuru Taluk, measuring 04 Acres 18 guntas, was granted to her on 29.08.1978 and that she was in continuous possession and enjoyment of the said property. She alleged that the defendant No.1 had illegally encroached 02 Acres out of the aforesaid extent. She stated that the Tahsildar got measured the suit property and submitted a report to the Assistant Commissioner, affirming the encroachment by the defendants. The plaintiff thus represented before the Assistant Commissioner to restore the possession of the property encroached by the defendants. The Assistant Commissioner in terms of his order dated 28.02.2011 held that the grant in favour of the plaintiff was without noticing

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the earlier grant in favour of the Tractor Training Center. Therefore he ruled that the possession of the property cannot be restored to the plaintiff. The plaintiff thereafter filed an appeal in R.A. No.2/2011-12 before the Deputy Commissioner, who dismissed the appeal and in the course of his order, held that the grant certificate in favour of the plaintiff was doubtful. The plaintiff stated that the defendant Nos.1 to 3 in their objections filed before the Deputy Commissioner had claimed that the State Government had granted 398 Acres 23 guntas for establishment of the Tractor Training Center. She therefore sought information from defendant No.1 regarding the extent of land granted to the defendant Nos.1 to 3 and the extent of land in their possession. In response, she received information that an extent of 196 Acres 05 guntas was possessed by the defendant Nos.1 to 3, but no information was provided regarding the possession of 398 Acres 23 guntas as claimed by defendant Nos.1 to 3. She claimed that in terms of a memorandum of understanding, the defendant Nos.1 to 3 had transferred 04 Acres 18

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guntas in Sy. No.28 to defendant No.4 for the purpose of horticulture. Therefore, the defendant No.4 was arrayed as a party in the suit. Hence, she sought for a declaration of her title to the encroached land and for possession and consequent injunction.

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Though the notice of the suit was issued to the defendants and though defendant Nos.1, 2 and 4 entered appearance, they failed to file the written statement. The defendant No.3 though served with notice, remained continuously absent. Nonetheless the Trial Court framed the following issues:

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“1) Whether the plaintiff proves that she is the lawful owner of the suit schedule properties?

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1. Whether the plaintiff proves that defendants 1 to 3 have encroached the suit schedule property?

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1. Whether the plaintiff is entitled for the reliefs as sought for?

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1. What order or decree?”

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The power of attorney of the plaintiff was

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examined as PW.1, but he died and thereafter the plaintiff was examined as PW.2 and she marked documents as Exs.P1 to 43. The defendants did not cross-examine PW.2 and did not lead any evidence.

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Based on the oral and documentary evidence, the Trial Court held that the suit property was granted to the plaintiff as per Ex.P39 – grant certificate. It also noticed Ex.P2 which was the Revenue record of the suit property for the year 2013-14 which indicated that the plaintiff was the owner of the land measuring 04 Acres 18 guntas in Sy. No.28. Exs.P15 to 18 and P20 to 33 were the RTC extracts for the previous years which disclosed that the plaintiff was the owner of the suit property. Ex.P43 was the certificate issued by the Department of Agriculture releasing monetary incentive to the plaintiff recognizing her as a small farmer.

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However, the Trial Court noticed that in terms

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of Ex.P11 – reply notice issued by defendant No.4 to the

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statutory notice under Section 80 of the Civil Procedure Code (for short, ‘the CPC’), it was claimed that an extent of 2 acres of land in Sy.No.28 belonged to the Horticulture Department. It also noticed Ex.P42, which was a sketch which indicated that 04 acre 18 guntas in Sy.No.28 was in the possession of the Horticulture Department. The Trial Court took into account, the averments of the plaint which disclosed that the Assistant Commissioner had raised doubt about the genuineness of the grant certificate in favour of the plaintiff and directed the Tahasildar to look into the genuinity of the grant. The Trial Court noticed that the Order of the Assistant Commissioner was challenged before Deputy Commissioner, who dismissed it after expressing a doubt about the grant certificate issued in favour of the plaintiff. The Trial Court held that there was no evidence to identify the boundaries of the suit property and none of the documents marked by the plaintiff established it. Thus, the Trial Court dismissed the suit.

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Being aggrieved by the aforesaid Judgment and Decree of the Trial Court, the plaintiff filed R.A.No.646/2016. The First Appellate Court secured the records of the Trial Court. The plaintiff filed an application under Order XLI Rule 27 of the CPC to adduce additional evidence. This application was not opposed by the defendants. Hence, the application was allowed and the plaintiff was examined further and she marked documents Exs.P44 to P47. The learned counsel for defendant No.3 cross-examined PW.2 before the First Appellate Court in respect of the additional evidence adduced. However, the defendants did not attempt to seek permission to file the written statement or lead any evidence.

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The First Appellate Court heard the counsel for

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parties and framed the following points for consideration:

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“1) Whether the impugned judgment and decree of the lower court is opposed to law, facts and circumstances of the case and interference of this court is necessary?

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1. What Order?”

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The First Appellate Court held that the plaintiff had produced the grant certificate as well as the RTC extracts which indicated that she was in possession of the suit property pursuant to the grant. It also held that pursuant to the acceptance of mutation proceedings in M.R No. 15/1978-79, the revenue records were transferred to the name of the plaintiff in respect of the land measuring 04 Acres 18 guntas in Sy. No.28. It noticed that from the year 1978-79 till the year 2012-13, the name of the plaintiff appeared in the revenue records. The First Appellate Court considered Ex.P46, which was a spot mahazar prepared by the Assistant Commissioner, which indicated that the suit property was granted to the plaintiff on 29.08.1978. The First Appellate Court noticed from Ex.P46 that the Assistant Director of Horticulture who was present at the time of inspection had claimed that the plaintiff was not in possession for over 17 to 18 years and that the defendant Nos.1 to 3 had developed the suit property in the year 1991-1992 and raised cashew plantation. It also noticed that no corresponding

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documents relating to the grant of 196 Acres 05 guntas to the Department of horticulture was marked. It further took into consideration, the statement made by the Assistant Director of Horticulture before the Assistant Commissioner that in the event of delivery of possession of the suit property to the plaintiff, the same may be done only after preparing a sketch. Considering the aforesaid, the First Appellate Court held that the plaintiff had proved her title to the suit property. However, in so far as the possession of the defendant Nos.1 to 3 is concerned, the First Appellate Court held that the Assistant Commissioner without issuing any notice and without conducting any survey, had unilaterally held that the Department of Horticulture was in possession of the suit property. Thus, the First Appellate Court held that the plaintiff had proved her title to the suit property and that defendant Nos.1 to 3 had illegally encroached into the suit property. The First Appellate Court therefore allowed the appeal and set aside the Judgment and Decree of the Trial Court in O.S. No.460/2013.

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Being aggrieved by the aforesaid judgment and

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decree of the First Appellate Court the defendants have filed the Regular Second Appeal.

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The learned High Court Government Pleader, appearing for the defendants contended that the documents marked by the plaintiff would indicate that the defendants were in possession of the suit property for well over 12 years and therefore, the plaintiff could not have filed the present suit for a mere declaration of her title to the suit property. He claimed that the plaintiff must have sought for the recovery of possession of the suit property. The learned Government pleader contended that the documents marked by the plaintiff would indicate that the grant made in favour of the plaintiff was doubtful and therefore, the First Appellate Court committed an error in decreeing the suit. The learned Government Pleader further contended that though the defendants had not filed their written statement and had not contested the suit, but

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yet, they could rely upon the documents filed by the plaintiff to non-suit her.

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During the pendency of this appeal, the defendants filed an application under Order XLI Rule 27(1) of the Civil Procedure Code, 1908 seeking to furnish the following documents by way of additional documentary evidence:

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1. The copy of the letter dated 07/02/1966 from the Taluk Development Board, Mysuru to the Assistant Superintendent of land Records.

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1. The copy of the gazette pertaining to tractor training centre vide order GO.NO.239/ah/271 dated: 8^th June 1971.

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1. The Xerox copy of the map dated 8/06/1971.

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1. A letter dated 04/01/1992 to Deputy Director of Horticulture from the Senior Assistant Director of Horticulture.

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1. A copy of the authentication letter issued by the Office of Horticulture department dated 20/01/2009.

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1. The copy of the endorsement issued by the Office of Tahasildhar regarding non-availability of original grant certificate in the grant

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1. The copy of the spot inspection report or spot mahazar issued by the Tahasildhar dated 30/10/2003.

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1. The copy of the letter dated 03/06/2004 from the office of Tahasildhar to Assistant Commissioner.

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1. The certified copy of the order dated 28/02/2011 passed by the Assistant Commissioner in LND/CR.49/2004-05.

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1. The certified copy of the Order of the District Commissioner dated 17/01/2012 in RA.2/2011-12.

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1. The certified copy of the order dated 22/09/2010 passed by the Under Secretary to the Government, Department of Horticulture, Bengaluru.

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1. The copy of the order dated 10/05/2013 by the Under Secretary to the Government, department of Horticulture, Bengaluru.

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1. The Xerox copy of the invitation card as to the opening ceremony of the building of the horticulture college dated 14/09/2014.

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1. The photos of the poly houses/Shade net houses infrastructure in the suit schedule property.

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A memo dated 16.04.2021 is also filed by the learned High Court Government Pleader to frame the following additional substantial questions of law :

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“(e) Whether the Hon’ble Court has erred in not considering the law of limitation, which bars Suit of the Plaintiffs?

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(f) Whether the Hon’ble Appellate Court has erred in not considering the mandatory provisions under Order XXVII Rules 5 (a) and (b) and Sections 79 and 80 of C.P.C.?

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(g) Whether the Trial Court and the 1^st Appellate Court have ignored the provisions of Order 7 Rule 3 of the Civil Code Procedure as to identification of the disputed property?

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(h) Whether the Appellate Court has erred in decreeing the Suit of the Plaintiffs, that the identification of the suit schedule property in the said Survey Number?

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(i) Whether the Trial Court has wrongly erred in not following the case flow Management Rules

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(Karnataka Case Flow Management in Subordinate Courts) Rules, 2005?

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(j) Whether both the Courts have erred in not framing the issues, as the non-joinder of necessary/proper party to adjudicate the Suit of the Plaintiffs?

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(k) Whether the Appellate Court has grossly erred in reversing Judgment by considering Ex.P-46, which is contrary to the evidence adduced by PW-2 claiming possession of the suit schedule property?”

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1. The learned counsel for the plaintiff

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respondent contended that the defendants have till date not sought any permission to file their written statement. Therefore, the question of adducing additional evidence would not arise. She contended that the documents sought to be produced do not relate to the property granted to the plaintiff. In so far as the contention of the defendants that the suit is not maintainable for non-compliance of the statutory requirement of a notice under Section 80 of the CPC the learned counsel contended that a notice was indeed issued as per Ex.P3 on 12.04.2013 and the suit was

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thereafter filed on 30.07.2013. Therefore she claimed that the requirement of Section 80 of the CPC was complied. As regards the non-compliance of Section 79 and Order XXVII Rule 5A of the CPC, she contended that the defendant No.3 did not raised such a contention before the First Appellate Court. She contended that the defendant No.3 was the end officer in the department of Horticulture, which is a limb of the State. Therefore she contended that the purpose of Order XXVII Rule 5A and Section 79 of the CPC is sufficiently met.

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I have given my anxious consideration to the arguments canvassed by the learned counsel for the parties. I have also perused the records of the Trial Court and the First Appellate Court that were secured. It is relevant to note that none of the defendants, though served with the notice of the suit, had filed a written statement. They had not even contested the suit by crossexamining the witness for the plaintiff and had not even attempted to place on record any documentary evidence.

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Therefore, this appeal will have to be considered in the light of the conduct of the defendants. Though this Court granted sufficient time to make amends, yet the defendants showed no penitence and did not seek permission to file their written statement but insisted the Court to consider the additional documentary evidence sought to be placed on record.

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A perusal of the affidavit filed in support of the application filed under Order XLI Rule 27 of the CPC, the defendants have not mentioned any reason, whatsoever, for not producing these documents before the Trial Court and the First Appellate Court. They have also not explained whether the documents were in their custody or not during the pendency of the suit. It is not even stated that these documentary evidence were not in their knowledge or custody. Therefore, the fundamental and threshold requirement of allowing additional documentary evidence at the appellate stage as provided under Order XLI Rule 27 of the CPC is not fulfilled. In this regard, it is

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profitable to refer to a Judgment of the Supreme Court in India in N. Kamalam (dead) and another vs.

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Ayyasamy and another [2001 (7) SCC 503], where it is held as follows:

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“19. Incidentally, the provisions of Order 41 Rule 27 have not been engrafted in the Code so as to patch up the weak points in the case and to fill up the omission in the court of appeal – it does not authorize any lacunae or gaps in evidence to be filled up. The authority and jurisdiction as conferred on to the appellate court to let in fresh evidence is restricted to the purpose of pronouncement of judgment in a particular way.”

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Since the defendants have not made any attempts to file their written statement, no amount of evidence would help them. Therefore on these counts, the application filed by the defendants for production of additional documentary evidence is rejected.

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In so far as the contention of the defendants/appellants that the suit is not maintainable for non-compliance of Section 80 of the CPC, it is seen that

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the plaintiff had issued a prior notice as per Ex.P3 on 12.04.2013 and thereafter filed the suit on 30.07.2013. This notice was also replied by the defendant No.2. The plaint at para No.9 refers to the issuance of the notice dated 12.04.2013 (Ex.P3) to the defendant Nos.1 to 3. The fact that notice was issued was not denied by the defendants. The defendant No.3 was the Secretary in the Department of Horticulture and therefore, Ex.P3 satisfies the requirement of Section 80 of the CPC.

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As regards the contention that the suit is liable to be dismissed for non-compliance of Section 79 and Order XXVII Rule 5A of the CPC, all the defendants in the suit were public functionaries and represented the State. The defendant No.3 who is the Principal Secretary of the Department of Horticulture, though served with the notice of the suit, did not bother to contest the suit. He did not raise any contention regarding the maintainability of the suit on the ground that “Government” was not arrayed as a party to the suit. The defendant No.3 though partook in

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the proceedings before the First Appellate Court, did not contest the maintainability of the suit on the ground of non-compliance of Section 79 and Order XXVII Rule 5A of the CPC. Even in this Regular Second Appeal, the defendants did not raise any ground regarding the maintainability of the suit for non-compliance of Section 79 and Order XXVII Rule 5A of the CPC. It is only by way of memo for framing of additional substantial questions of law that the defendants have raised this as one of the questions. Though this is a question of law, yet the defendants were bound to raise this contention at the earliest opportunity, as the plaintiff would have remedied the same at the earliest point in time.

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21. The purpose of Order XXVII Rule 5A of the CPC

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is not far to seek. This is incorporated in the Civil Procedure Code to abort actions brought against public officers in their individual capacity in respect of property or affecting any interest belonging to the Government. In the case on hand, all the defendants were public functionaries

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and each one of them was in the service and drawing pay from the Government for the performance of a public duty. The defendant No.3 being the head of the Department of Horticulture, unquestionably represented the Government. A Public Officer is defined under Section 2(17)(g) of the CPC as:

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“every officer whose duty it is, as such officer, to take, receive, keep or expend any property on behalf of the Government, or to make any survey, assessment or contract on behalf of the Government, or to execute any revenue process, or to investigate, or to report on, any matter affecting the pecuniary interests of the Government, or to make, authenticate or keep any document relating to the pecuniary interests of the Government, or to prevent the infraction of any law for the protection of the pecuniary interests of the Government.”

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22. The defendants are all arrayed in their official

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capacity and the defendant No.3 in particular is the Principal Secretary of the Department of Horticulture and represents the Government. Though it was better off for the plaintiff to have specifically mentioned the defendant No.3 as representing the Government, the suit cannot be

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thrown out on that technical reason. If the officials of the Government though being served with the notice of the suit, do not contest the same, they do so at their own peril. Hence, the contention of the defendants that the suit was not in proper form and therefore not maintainable, is liable to be rejected.

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The documentary evidence placed on record by the plaintiff would indicate that the plaintiff was granted 04 Acres 18 guntas in Sy No.28 in terms of Ex.P39. Later, proceedings for entering the name of the plaintiff in the revenue records was initiated in M.R No.15/1978-79 (Ex.P13). The corresponding entries are found in the record of rights (Ex.P14) and the RTC extracts for the year 1975-76 (Ex.P15) and onwards till 2014-15. The Index of land as per Ex.P34 also shows the name of the plaintiff as the owner of the land. The encumbrance certificate of the suit property for the term 01.04.1980 till 31.12.2003 and from 01.01.2004 till 02.06.2015 shows no transactions. The boundaries of the suit property were fixed in terms of

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Ex.P40. The plaintiff was granted a financial incentive for being a small farmer. In terms of Ex.P.46, the Assistant Commissioner along with the Assistant Director of Horticulture and the surveyor inspected the suit property on 30.06.2004. The Assistant Commissioner noticed that the suit property lay within the holding of the Horticulture Department where they had planted 97 cashew trees that were aged between 8-10 years. He considered the documents furnished by the Tahsildar and found that the name of the plaintiff was entered in column No.9 of the RTC pursuant to acceptance of mutation proceeding in MR No.15/78-79. It was also found that a saguvali chit was issued to the plaintiff on 29.08.1978 pursuant to a grant. He further noticed that the Horticulture Department was only in possession of 196 Acres 05 guntas and the remaining extent out of 398 Acres 23 guntas was disposed off by various means. He found that there were no corresponding orders supporting the grant of 196 Acres 05 guntas to the Horticulture Department. The Assistant Director of Horticulture claimed that the plaintiff was not in

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possession of the suit property for over 17-18 years while the department was in possession for over 20 years and that the department had developed it in the year 1991-92 by raising cashew plants. He therefore requested that the suit property be retained to the use of the department. He however claimed that in the event the land had to be restored to the plaintiff, the same may be done after demarcating and identifying the available land. The Assistant Commissioner found after a survey that an extent of 02 acres was available in Sy.No.28. The Assistant commissioner found that though the suit property was in possession of the Horticulture Department, who had fenced it by a barbed wire, yet they did not possess any document supporting their possession or right over it. The Assistant Commissioner held that the plaintiff’s name was incorporated in the revenue records. He noticed the order of the Tahsildar dated 11.02.1991 by which the possession of the suit property was restored to the plaintiff, as the defendants did not furnish any document of their title to the suit property. Thus the

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Assistant Commissioner directed a report to be furnished to the Deputy Commissioner for grant of two acres of land in Sy.No.28, on humanitarian grounds.

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Thereafter, on a request of the plaintiff to restore the possession of the suit property, the Assistant Commissioner held proceeding in LND/CR.49/2004-05 and passed an order dated 28.02.2011 (Ex.P.44) whereby he relied upon the spot inspection report of the Tahsildar dated 03.06.2004 where it was found that the suit property was in possession of the Horticulture Department. Though no documents were furnished by the defendants, he blindly accepted the claim of the defendants that the suit property was granted on 08.06.1971 to the Tractor Training Center. Based on the above, he doubted the grant of the suit property to the plaintiff. He thus refused to restore possession of the suit property to the plaintiff and held that the Assistant commissioner is not empowered to restore possession of the suit property. He directed the Tahsildar, Mysore to take steps for cancellation of the

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grant of the suit property to the plaintiff. However, no action whatsoever is taken till date for cancellation of the grant of the suit property to the plaintiff.

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Thus one fact is certain, that the suit property was granted to the plaintiff. The defendants have continuously avoided furnishing the documents of their title to the suit property from the year 1991 in the proceedings before the Tahasildar and in the year 2004, when the Assistant Commissioner conducted the spot inspection and thereafter in proceedings No.LND/CR.49/2004-05 before the Assistant

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commissioner. They failed to produce any documents before the Trial Court and the First Appellate Court. Defendants have now made an attempt on 16.04.2021 before this Court to produce additional documentary evidence. The lethargy of the concerned official of the defendants in not efficiently defending the suit is unacceptable and it is for the defendants to keep their house in order. Though this Court nudged the defendants to initiate action against the concerned official, except

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claiming that a notice was issued, no seeming action was taken by the defendants. Hence, the defendants are bound to face the consequences, as law would not aid those who sleep when their rights are invaded. The defendants utterly failed to plead and prove that the suit property was granted to them and that they had a better title to the suit property. Since possession follows title in respect of vacant land and as the plaintiff had proved her title to the suit property, the defendants are bound in law to restore possession of the suit property to the plaintiff.

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In view of the above, this appeal lacks merit and same is dismissed.

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This shall not come in the way of the defendants taking suitable steps in accordance with law for cancellation of the grant of the suit property in favour of the plaintiff.

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Sd/JUDGE

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sma

The Assistant Director of Horticulture v. Smt. Chikkamma

Case brief

What is this about?

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The Assistant Director of Horticulture v. Smt. Chikkamma

Case brief

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What did the court decide?

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