Partly allowed

Mahadevamma v. Shivashankarappa

Karnataka HC10 Feb 2022RSA/1862/2013

Case brief

AI extract

What is this about?

This High Court disposed of two regular second appeals. The court modified lower court judgments to declare the appellant the absolute owner in possession of 35 guntas of land, distinguishing the 29 guntas designated for a burial ground, holding the dismissal based on technical notice non-compliance unsustainable given court permission to proceed.

What did the court decide?

Judgments and decrees of Trial Court and First Appellate Court modified to declare appellant owner in possession of 35 guntas.

Mahadevamma Vs Shivashankarappa — Public Procurement and Tenders | Karnataka HC (2022)

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

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DATED THIS THE 10^TH DAY OF FEBRUARY, 2022

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BEFORE

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THE HON’BLE MR.JUSTICE M.G.S.KAMAL

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REGULAR SECOND APPEAL NO.2029/2013 C/W REGULAR SECOND APPEAL NO.1862/2013

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IN R.S.A.NO.2029/2013:

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BETWEEN:

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MAHADEVAMMA W/O LATE C.B. RAMEGOWDA AGED ABOUT 61 YEARS R/AT CHANDAGALU VILLAGE HEBAL HOBLI K.R. NAGAR TALUK - 571 607

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... APPELLANT

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(BY SRI RAJEEVA B.C., ADVOCATE)

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AND:

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SECRETARY CHANDAGALU GRAM PANCHAYAT K.R. NAGARA TALUK MYSORE DISTRICT - 571 607

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2 . THE CHIEF SECRETARY

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GOVT. OF KARNATAKA VIDHANA SOUDHA BANGALORE - 560 001

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3 . TAHSILDAR

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K.R.NAGAR TALUK K.R. NAGAR - 571 607

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4 . SHIVASHANKARAPPA S/O. LATE PUTTAPPA AGED ABOUT 64 YEARS

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JAVAREGOWDA DEAD BY HIS LRS

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5(a). SMT. PUTTATHAYAMMA W/O LATE JAVAREGOWDA AGED ABOUT 70 YEARS

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5(b). KRISHNAMURTHY S/O LATE JAVAREGOWDA AGED ABOUT 50 YEARS

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5(c). MUKUNDA S/O LATE JAVAREGOWDA, AGED ABOUT 45 YEARS

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5(a) TO 5(c) ARE RESIDENTS OF CHANDAGALU VILLAGE HEBBAL HOBLI K.R.NAGARA TALUK MYSORE DISTRICT - 571 607

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MANCHEGOWDA S/O LT. DEVI SIDDEGOWDA AGED ABOUT 70 YEARS

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7 . PUTTEGOWDA

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S/O LT. DASEGOWDA AGED ABOUT 62 YEARS

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NAGARAJANAIKA S/O PUTTANAIKA AGED ABOUT 52 YEARS

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UDBUR RAJANAIKA S/O LATE SIDDANAIKA, AGED ABOUT 56 YEARS

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10 . SRINIVASAGOWDA DEAD BY HIS LRS.

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10(a). SMT. SANNAMMA W/O LATE SRINIVASAGOWDA AGED ABOUT 70 YEARS,

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10(b). GOPALA S/O LATE SRINIVASAGOWDA, AGED ABOUT 50 YEARS

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R6 TO 10(b) ARE R/O CHANDAGALU VILLAGE HEBBAL HOBLI K.R.NAGAR TALUK - 571 607

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…RESPONDENTS

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(BY SRI. B. RAJENDRA PRASAD, HCGP FOR R1 TO R3; SRI. B.S. NAGARAJ, ADVOCATE FOR R4, R5(A & B), R6, R9 & R10(A & B) R5(C) - SERVED)

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THIS APPEAL IS FILED UNDER SECTION 100 OF CODE OF CIVIL PROCEDURE AGAINST THE JUDGEMENT & DECREE DTD 17.4.2013 PASSED IN R.A.NO.238/2012 ON THE FILE OF THE PRESIDING OFFICER, C/C FAST TRACK COURT-III, MYSORE, ALLOWING THE APPEAL AND SETTING ASIDE THE JUDGEMENT

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AND DECREE DTD 17.1.2012 PASSED IN O.S.NO.553/2007 ON THE FILE OF THE SENIOR CIVIL JUDGE AND JMFC, K.R.NAGAR.

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IN R.S.A.NO.1862/2013:

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BETWEEN:

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MAHADEVAMMA W/O LATE C.B.RAMEGOWDA AGED ABOUT 61 YEARS RESIDING AT CHANDAGALU VILLAGE HEBAL HOBLI K.R.NAGAR TALUK - 571 602

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... APPELLANT

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(BY SRI RAJEEVA B.C., ADVOCATE)

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AND:

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1 . SHIVASHANKARAPPA S/O. LATE PUTTAPPA, AGED ABOUT 65 YEARS

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2 . MANCHEGOWDA S/O LATE DEVI SIDDEGOWDA AGED ABOUT 76 YEARS

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3 . PUTTEGOWDA S/O DASEGOWDA, AGED ABOUT 63 YEARS

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4 . NAGARAJANAIKA S/O PUTTANAIKA AGED ABOUT 53 YEARS

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5 . UDBOOR RAJANAIKA S/O LATE SIDDANAIKA

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AGED ABOUT 57 YEARS

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6 . THE SECRETARY CHANDAGALU VILLAGE PANCHAYAT CHANDAGALU

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K.R.NAGAR TALUK - 571 607

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7 . THE CHIEF SECRETARY GOVERNMENT OF KARNATAKA VIDHANA SOUDHA BANGALORE - 560 001

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8 . THE TAHSILDAR K.R.NAGAR TALUK - 571 607

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R1 TO R5 ARE AGRICULTURIST RESIDING AT CHANDAGALU VILLAGE HEBBAL HOBLI K.R. NAGAR TALUK MYSORE DISTRICT.

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…RESPONDENTS

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(BY SRI. B.S. NAGARAJA, ADVOCATE FOR R1 TO R5; SRI. B. RAJENDRA PRASAD, HCGP FOR R6 TO R8)

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THIS APPEAL IS FILED UNDER SECTION 100 OF CODE OF CIVIL PROCEDURE AGAINST THE JUDGEMENT & DECREE DTD 17.4.2013 PASSED IN R.A.NO.110/2012 ON THE FILE OF THE PRESIDING OFFICER, C/C FAST TRACK COURT-III, MYSORE, ALLOWING THE APPEAL AND SETTING ASIDE THE JUDGEMENT AND DECREE DTD 17.1.2012 PASSED IN O.S.NO.553/2007 ON THE FILE OF THE SENIOR CIVIL JUDGE AND JMFC, K.R.NAGAR.

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

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JUDGMENT

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The present regular second appeals are filed by the appellant/plaintiff aggrieved by the judgment and decree dated 17.04.2013 passed in R.A.Nos.110/2012 and 238/2012 on the file of the Fast Track Court-III, Mysuru, (hereinafter referred to as 'the First Appellate Court'), in and by which, allowing the said regular appeals and the first appellate court set aside the judgment and decree dated 17/01/2012 passed in O.S.No.553/2007 on the file of Senior Civil Judge and J.M.F.C., K.R.Nagar (hereinafter referred to as 'the Trial Court').

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The parties are referred to as per their original rankings before the trial court.

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The case of the plaintiff in brief is that; she

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is the owner in possession of land measuring 1 acre 24 guntas in Sy.No.147 of Katnalu Hantha of

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K.R.Nagar Taluk. That out of the said extent of 1 acre 24 guntas, 35 guntas is wet land and remaining 29 guntas is dry land. That she has grown 100 eucalyptus tress in the said 29 guntas of dry land and she has been in possession and cultivation the said land. That the property originally belonged to her husband Ramegowda S/o Boraiah, who is also known as Boregowda. That after his demise, revenue records were mutated in the name of the plaintiff. That a regular appeal No.151/2005-06 had been filed by the 8th defendant before the Assistant Commissioner to direct the Tahsildar, K.R.Nagar to maintain khatha of Burial ground to an extent of 29 guntas. That the plaintiff had also filed RA.No.56/2005-06 before the Assistant Commissioner to rectify the mistakes in the revenue record. That the Assistant commissioner directed the plaintiff to approach the civil courts. That the defendants were interfering with the peaceful

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possession and enjoyment of the suit schedule property. The aforesaid aspect of the matter constrained the appellant/plaintiff to seek relief of declaration and injunction against the

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respondents/defendants.

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The defendant No.8 filed written statement and defendant Nos.1, 4, 5 and 6 adopted the same. It is contended that out of the land measuring 1 acre 24 guntas in Sy.No.147, 29 guntas of land belonged to Panchayathi and the same had been used as burial ground and the plaintiff has been in possession and enjoyment over remaining 35 guntas and as such the plaintiff was not in possession of entire extent of land. That the plaintiff obtained the khatha behind the back of the defendants by filing a RA.151/2005-06 before the Assistant Commissioner. That the Assistant Commissioner directed the Tahsildar, K.R.Nagar to

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maintain khatha of burial ground to an extent of 29 guntas in the aforesaid survey number. As such the villagers were using the said extent of land as burial ground since time immemorial. That 29 guntas of land had been acquired by the Government for the purpose of burial ground and there are eucalyptus trees grown in the burial ground. That since the plaintiff had no manner of right over the said 29 guntas of land, the question of dispossessing the plaintiff from the suit schedule property does not arise. The suit is bad for non-joinder of necessary parties. That the suit is not maintainable for want of notice under Section 295(2) of the Karnataka Panchayath Raj Act. Hence, sought for dismissal of the suit with exemplary cost.

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The Trial Court based on the pleadings framed the following issues:

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(1) Whether the plaintiff proves that the suit schedule property was belonged to her husband Ramegowa?

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(2) Whether the plaintiff proves that she is the absolute owner of suit schedule property?

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(3) Whether the plaintiff proves her lawful possession over the suit schedule property as on the date of suit?

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(4) Whether the plaintiff proves the alleged interference by the defendants?

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(5) Whether the defendants 1, 4 to 6 and 8 to 10 prove that 29 guntas in the suit schedule property has been acquired by the Government for burial ground being used by Mohammedans?

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(6) Whether the defendants 1, 4 to 6 and 8 prove that the suit against

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defendant No.8 is not maintainable for want of notice under Section 295(2) of Karnataka Panchayath Raj Act?

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(7) Whether the defendants 1, 4 to 6 and 8 to 10 prove that the suit is bad for mis-joinder of unnecessary parties and non-joinder of necessary parties?

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(8) Whether the plaintiff is entitled

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to the relief as sought for?

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(9) What order or decree?

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The son of the appellant/plaintiff namely,

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C.R.Rupesha has been examined as PW.1 and one C.K.Shankar has been examined as PW.2 and exhibited 10 documents as per Ex.P1 to Ex.P10. On behalf of the respondents/defendants, one Shivashakarappa and Ambika have been examined as DWs.1 and 2 and exhibited 4 documents as Exs.D1 to

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D4. On appreciation of evidence, the Trial Court, by its judgment and decree dated 17/01/2012 decreed the suit of the appellant/plaintiff holding that the appellant/plaintiff is the absolute owner in possession of the suit schedule property and consequently restrained the defendants permanently from interfering with the peaceful possession and enjoyment of the appellant/plaintiff over the suit schedule property.

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Aggrieved by the same, defendant Nos.1, 3, 5 and 6 filed regular appeal in R.A.No.110/2012 while defendant No.8, the Secretary of Chandagalu Grama Panchayath filed regular appeal in R.A.No.238/2012 before the First Appellate Court. Considering the grounds urged in the appeal memo, the First Appellate Court framed the following points for its consideration.

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(1) Whether the plaintiff/1st respondent is the absolute owner of the entire suit schedule property?

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(2) Whether the Trial Court is justified in granting relief of declaration and injunction to the 1st respondent?

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(3) Whether the judgment and decree of the Trial Court calls for interference in RA.No.110 and 238 of 2012?

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(4) What order?

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On re-consideration of oral and

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documentary evidence, the first appellate court, by its judgment and decree dated 17/04/2013 allowed the aforesaid appeals, setting aside the judgment and decree passed by the Trial Court. Being aggrieved with the same, the plaintiff is before this Court.

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Sri B.C.Rajeeva, learned counsel for the

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appellant/plaintiff reiterating the grounds urged in the appeal memorandum submitted;

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(i) That the defendants had categorically admitted in the written statement about plaintiff being the absolute owner to the extent of 35 guntas of land. As regards remaining extent of land, the plaintiff has produced cogent evidence in support of her claim of she being the owner to the entire extent of land, but this aspect of the matter has not been taken into consideration by the first appellate court.

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(ii) That the plaintiff has grown 100 eucalyptus trees in the dry land measuring 29 guntas of land and she has been in possession over the said property.

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(iii) That the reasoning assigned by the first appellate court to dismiss the suit for non-compliance of Section 295(2) of Karnataka Panchayath Raj Act (for short hereinafter referred to as 'the Act') has caused great mis-carriage of justice.

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(iv) That the plaintiff while filing the suit had also filed an application under Section 80(2) of CPC seeking dispensation of notice to the respondents/defendants. The said application had been allowed. In that view of the matter, the first appellate court was not justified in dismissing the suit on the said technicality.

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As such, the same has given rise to substantial question of law requiring consideration. Hence, sought for allowing the appeal.

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Per contra, Sri B.S.Nagaraj, learned

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counsel appearing for the defendant Nos.4, 5(A & B), 6, 9 & 10(A & B) and learned HCGP appearing for defendant Nos.1 to 3 justifying the judgment and decree passed in the aforesaid regular appeals submit that the revenue records produced by the plaintiff herself would establish that she is the owner to an extent of 35 guntas and 29 guntas of land has been reflected in the revenue records to be burial ground and as such no substantial question of law arises in these appeals for consideration. Hence, sought for dismissal of the appeals.

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Heard the learned counsel for the parties.

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Considering the rival submissions of the

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parties and in view of the fact that the defendants in their written statement have admitted the plaintiff being the owner in possession of the land to an extent

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of 35 guntas of land and the same having been reflected in the revenue records at Exs.P1, P3 and P8, the appeal is admitted to consider the following substantial question of law:

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"Whether in the facts and in the circumstances of the matter the first appellate court is justified in setting aside the judgment and decree dated 17/01/2012 passed in OS.No.553/2007 by the trial court in its entirety?"

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Though these appeals are posted for admission and the aforesaid substantial question of law has been framed, with the consent of learned counsel for the plaintiff and defendants, the matters are taken up for final disposal.

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The aforesaid facts do not require

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reiteration. The trial court, based on the evidence produced by the plaintiff had decreed the suit in its

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entirety. Aggrieved by the judgment and decree dated 17/01/2012 in OS.No.553/2007, the defendants No.1 to 7 being the villagers and the defendant No.8 being the Secretary of the village Panchayath had preferred the regular appeals in RA.Nos.110/2012 and 238/2012 respectively before the first appellate court. The first appellate court taking note of the entries in the revenue records and taking note of the contention of the official defendant No.8 regarding noncompliance of Section 295(2) of the Act read with section 80 (2) of CPC came to the conclusion that the suit of the plaintiff was not maintainable as she has not complied with the mandatory provision of the Act requiring issue of a notice and eventually allowed the aforesaid regular appeals by setting aside the judgment and decree passed by the trial court.

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There is a categoric admission by the defendant No.8, the Secretary of Chandagalu Grama Panchayath, with regard to the ownership and possession of the plaintiff to the extent of 35 guntas of land out of 1 acre 24 guntas in Sy.No.147 of Katnalu Hantha Village, K.R.Nagar taluk and same is reflected in the revenue records namely Ex.P3-M.R. extract, Ex.P7-RTC, Ex.P8-index of lands, Ex.P9Records of right and the order of Assistant Commissioner at Ex.P10 which establish the entitlement of the plaintiff to be the owner in possession of 35 guntas of land. The first appellate court ought to have taken into consideration these admission and material evidence made available on record.

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The contents of Ex.P10 being the order of the Assistant Commissioner passed in regular appeal

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No.151/2005-06 dated 17/01/2007 reveal that a specific direction was issued to the Tahsildar to register the name of the plaintiff to the extent of 35 guntas of land and remaining 29 guntas to be registered and maintained in the name of burial ground. There is also reference with regard to the acquisition of 29 guntas of land by the Government for the purpose of burial ground. The said order has not been challenged and the same has attained finality, which fact is not disputed by the plaintiff.

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The suit is of the year 2007. The parties contested the suit and defendants also filed aforesaid regular appeals. There is no dispute that upon the application filed by the plaintiff under section 80(2) of CPC pleading urgency, the plaintiff was permitted to maintain the suit even in the absence of issuance of statutory notice. After service of summons

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respondents No.7, 8 and 9 had not raised any serious dispute with regard to maintainability of the suit and they had filed written statements and continued to contest the suit. In that view of the matter and in the aforesaid facts and circumstances of the matter, dismissal of a suit by the first appellate court for noncompliance of Section 295(2) of the Act cannot be sustained.

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On a holistic reading of the pleading and material evidence and the reasoning of the trial court and first appellate court, this court is of the considered view that the judgment and decree passed by the trial court as well as the first appellate court are required to be modified to the extent of declaring plaintiff to be the absolute owner in possession of 35 guntas of land out of 1 acre 24 guntas of land of Katnalu Hantha village, K.R.Nagar Taluk and hence

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the substantial question of law is answered accordingly. In the result, the following.

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ORDER

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i) Regular Second Appeals No.2029/2013 and 1862/2013 filed by the appellant/plaintiff are hereby disposed off.

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ii) The plaintiff is declared to be the owner in possession of the land in Sy.No.147 to an extent of 35 guntas out of 1 acre 24 guntas situated at Katnalu Hantha of K.R.Nagar Taluk. iii) The judgment and decree dated 17/01/2012 passed in OS.No.553/2007 by the trial court and the judgment and decree dated

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17/04/2013 passed in RA.Nos.110/2012 and 238/2012 are modified to the above extent.

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Sd/JUDGE

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MKM

Mahadevamma v. Shivashankarappa

Case brief

What is this about?

What did the court decide?

Mahadevamma v. Shivashankarappa

Case brief

What is this about?

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