Dismissed

Sri. A.M. Vijayendra v. the Government of Karnataka

Karnataka HC9 Feb 2023RSA/156/2020

Case brief

AI extract

What is this about?

This court dismissed a regular second appeal challenging orders confirming a trial court decree dismissing a suit for injunction. The appellant claimed adverse possession over land allegedly granted to ancestors. The court upheld lower courts' findings that the land became Government property in 1996-97 and was reserved for public burial, rejecting claims of possession.

What did the court decide?

The appeal is dismissed, and the accompanying application for stay is disposed of.

Sri. A.M. Vijayendra Vs the Government of Karnataka — Property and Title | Karnataka HC (2023)

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1 - RSA No. 156 of 2020

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

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DATED THIS THE 9^TH DAY OF FEBRUARY, 2023

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BEFORE

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THE HON'BLE MR JUSTICE H.P.SANDESH

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REGULAR SECOND APPEAL NO. 156 OF 2020 (DEC/INJ)

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BETWEEN:

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SRI. A.M. VIJAYENDRA S/O LATE A.B. MANJAPPA, AGED ABOUT 58 YEARS, R/AT ABACHOORU, JAGANNANAKERE VILLAGE, GANHIGHAR POST, KASABA HOBLI, MUDIGERE TALUK, CHIKKAMAGALURU DISTRICT-577 132.

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…APPELLANT

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(BY SRI. ABHIJITH M.M., ADVOCATE)

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AND:

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Digitally signed by SHARANYA T Location: HIGH COURT OF KARNATAKA

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THE GOVERNMENT OF KARNATAKA REP. BY CHIEF SECRETARY TO GOVERNMENT, ROOM No.320, 3^RD FLOOR, VIDHANA SOUDHA, BANGALORE-560 001.

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THE PRINCIPAL SECRETARY TO GOVERNMENT OF KARNATAKA, REVENUE DEPARTMENT, ROOM No.505, 5^TH FLOOR, M.S. BUILDING, BANGALORE-560 001.

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THE REGIONAL COMMISSIONER MYSORE REGION ‘HIGH VIEW’, VINOBA ROAD,

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RSA No. 156 of 2020

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OPPOSITE KALAMANDIR, MYSORE-570 005.

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THE DEPUTY COMMISSIONER CHIKKAMAGALURU, CHIKKAMAGALURU DISTRICT-577 101.

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THE ASSISTANT COMMISSIONER CHIKKAMAGALURU SUB-DIVISION CHIKKAMAGALURU DISTRICT -577 101.

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TAHASILDAR MUDIGERE TALUK,

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CHIKKAMAGALURU DISTRICT -577 132.

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…RESPONDENTS

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(BY SRI. H.R.ANITHA, HCGP FOR R1 TO R6)

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THIS RSA IS FILED UNDER SEC.100 OF CPC AGAINST THE JUDGMENT AND DECREE DATED 19.11.2019 PASSED IN RA NO.05/2019 ON THE FILE OF THE SENIOR CIVIL JUDGE AND JMFC, MUDIGERE, DISMISSING THE APPEAL AND CONFIRMING THE JUDGMENT AND DECREE DATED 17.01.2019 PASSED IN OS NO.27/2017 ON THE FILE OF THE C/c.PRINCIPAL CIVIL JUDGE AND JMFC, MUDIGERE.

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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 matter is listed for admission

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today.

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Heard the learned counsel appearing for the appellant and the learned High Court Government Pleader appearing for respondent Nos.1 to 6.

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RSA No. 156 of 2020

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This appeal is filed challenging the judgment and

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decree dated 19.11.2019 passed in R.A.No.05/2019 on the file of the Senior Civil Judge and JMFC., at Mudigere.

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The factual matrix of the case of the plaintiff before the Trial Court is that he is in possession and enjoyment of the suit schedule property and the same was granted by the Government through Dharkasth No.9/1931-32 in the name of Byra @ Byrappa s/o. Putta. The Khatha has changed as per order No.24, dated 13.08.1932. After his death, the name of his son Manja @ A.B. Manjappa was entered in RTC, but in column No.9 it is shown as coffee kharab and A.B.Manjappa from 1968-69. A.B. Manjappa died on 04.10.1991, after which the plaintiff has not paid the land revenue and in 1996-97, defendant No.6 entered the column No.9 of RTC as Sarkari Beelu. The said fact came to the knowledge of the plaintiff on 03.09.2007 and immediately he filed necessary application before defendant No.6, but defendant No.6 did not take any action. Hence, the plaintiff sent an application dated 04.11.2012 to the Registrar of High Court of Karnataka and the matter was referred to the High Court Legal Aid Committee. The Committee took opinion of M/s.Desai and Associates on

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RSA No. 156 of 2020

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21.12.2012 and has transferred the dispute to the TLSC, Mudigere. The case was registered as PLC.No.03/2013. The defendant No.6 appeared before the Committee and filed objections, but has not agreed to change the khatha of the schedule property in the name of the plaintiff. Hence, the dispute was closed as not settled. Defendant No.6 without any right, title or interest over the schedule property is trespassing into the schedule property and removing the fence. Immediately after filing of the suit, the defendants appeared and defendant No.6 filed the written statement contending that on verification of revenue documents 1 acre 37 guntas of land in Sy.No.40 was granted under Darkasth in favour of Byra S/o. Putta and younger son Manja, the same is mentioned in Kethuvar Register. But in the index of land, the said land is mentioned as coffee kharab and also in RTC for the year 1968 to 1995 the land is shown as coffee kharab. However unauthorizedly the khatha has been mutated to the name of A.B. Manjappa S/o. Byrappa. But the said mutation entries are not mentioned in any mutation register. The plaintiff had submitted an application on 30.09.2007 to restore the khatha of the said land. As per the order dated 19.08.2012, the

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RSA No. 156 of 2020

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application of the plaintiff was disposed of. Since the property was used by the public for the purpose of burial ground and the same is ordered to be reserved for the use of public as burial ground. Neither defendant No.6 nor his subordinates have trespassed the suit schedule property. The defendants have issued an endorsement for the legal notice dated 06.09.2016 stating that the khatha cannot be mutated in favour of the plaintiff.

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Having considered the pleadings of the parties, the Trial Court framed the issues. The plaintiff got examined himself as P.W.1 and got marked the documents as Exs.P1 to P43. On the other hand, defendant No.6 has examined himself as D.W.1 and got marked the documents as Exs.D1 to D4.

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The Trial Court after considering both oral and documentary evidence available on record came to the conclusion that the plaintiff is not in possession of the suit schedule property and answered issue No.2 that the property is used by the public for the purpose of burial ground and declined to pass an order of injunction on the ground that the plaintiff has not established the possession over the suit

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RSA No. 156 of 2020

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schedule property while answering issue Nos.4 and 5 and dismissed the suit. Being aggrieved by the judgment and decree, an appeal had been filed, which is numbered as RA No.5/2019 before the First Appellate Court.

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The First Appellate Court on re-appreciation of both oral and documentary evidence placed on record came to the conclusion that the property vest with the State on account of non payment of tax. Subsequently, the property is also reserved for public burial ground. In order to establish the possession no witness of adjoining land owner has been examined before the Trial Court and also the plaintiff has not paid the tax to the Government and hence, the property fallen to the Government. Under the circumstances, no ground is made out and dismissed the appeal. Being aggrieved by the judgment and decree of the Trial Court and the First Appellate Court, the present second appeal is filed before this Court.

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The learned counsel appearing for the appellant would vehemently contend that both the Courts have committed an error in not considering the document – Ex.P1Khetuvaru Register. The learned counsel would submit that

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RSA No. 156 of 2020

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both the Courts have not considered both oral and documentary evidence available on record. The learned counsel also would submit that the revenue documents stand in the name of the plaintiff grandfather and in the name of plaintiff father and not getting the proper report of coffee kharab and trees stand in the suit schedule property and after the death of the father of the plaintiff he has not paid the revenue. The very observation of the Trial Court and the First Appellate Court is erroneous. The learned counsel also would submit that the substantial question of law arises for consideration of this Court is that both the Courts have committed an error and failed to appreciate the evidence available on record and ignoring the material on record and passed the judgments. Hence, it requires interference.

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Per contra, learned High Court Government Pleader appearing for the respondents/defendants would submit that the Trial Court and the First Appellate Court taken note of the evidence available on record and particularly came to the conclusion that no documents stand in the name of the plaintiff and admittedly, the property is fallen to the Government on account of non-payment of tax in the year 1995-96 itself

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RSA No. 156 of 2020

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thereafter application was filed in the year 2007. In the meanwhile, already the land is reserved for the public usage for the purpose of burial ground. The Tahasildar also made inspection and found that the suit schedule property is used by public for the purpose of burial ground. Both the Courts have taken note of the material available on record and given a definite finding that the plaintiff is not in possession of the suit schedule property. Hence, it does not require any interference.

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Having heard the respective counsel and also on perusal of the material available on record, the suit is filed for the relief of bare injunction in respect of 1 acre 30 guntas excluding 7 guntas of kharab land. It is the claim of the plaintiff that the land was granted in favour of the grand father of the plaintiff and also the same is not disputed by the defendants in the written statement and admitted that the land was granted in favour of grandfather of the plaintiff and also not disputed the fact that the property was fallen to the Government on account of non payment of tax. The Trial Court as well as the First Appellate Court taken note of in terms of document - Ex.D1, the schedule property is mentioned in column 9 as ‘Sarkari Beelu’ and the documentary evidence

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RSA No. 156 of 2020

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produced by the plaintiff i.e., Ex.P8-RTC reveals that some other properties were changed in the name of the plaintiff after death of his father. Ex.P8 reveals that khatha of Sy.No.39/p mutated in the name of the plaintiff in the year 1999-2000 and the Trial Court also while considering the contention of the plaintiff and while answering issues, in paragraph Nos.9 and 10 discussed with regard to the documents which have been placed by the plaintiff and also taken note of the evidence of D.W.1, who led evidence before the Trial Court and got marked the documents – Exs.D1 to D4. In terms of Ex.D1, which is the RTC of Sy.No.40 for the year 1996 to 2001, which shows Sarkari Beelu in Column No.9. Ex.D2 is the ILR for Sy.No. No.40, which shows coffee kharab. Ex.D3 is the certified copy of Khethuvaru Register, which is same as Ex.P1 and Ex.D4 is the order of the Tahasildar reserving 1.37 acres in Sy.No.40 as burial ground.

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The Trial Court taking note of all these material available on record came to the conclusion that the first of all the title deed of the original grant has not been produced before the Court. Apart from that, no document is available before the Court on the date of filing the suit to show that the

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RSA No. 156 of 2020

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plaintiff has been in possession of the property and taken note of Ex.D4, under which the property was reserved for public usage for burial of the dead body. Accordingly, answered issue No.1 as negative and Issue No.2 as affirmative and came to the conclusion that the property is used for burial ground and also Issue Nos.4 and 5 with regard to possession is concerned, the plaintiff fails to prove that he is in possession over the suit schedule property and dismissed the suit.

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The First Appellate Court also on re-appreciation of the grounds urged by the appellant before the First Appellate Court and considered both oral and documentary evidence placed on record and taken note of the material available on record and in paragraph No.16 discussed the disputed fact is that whether schedule property is coffee kharab or not. The document also discloses that the defendants wrongly entered coffee kharab but to prove the same the plaintiff has not placed any document regarding making of entry. The First Appellate Court also in paragraph No.17 taken note of the property was mentioned as Sarkari Beelu from 1996-97 as per Ex.D1. No doubt, the learned counsel for the appellant would contend that an application is filed for restoration of the property. But no

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RSA No. 156 of 2020

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such order has been passed for restoring the property in favour of the plaintiff. In order to prove the fact that he has been in possession of the property also except examining himself as P.W.1 not examined any of the witnesses and the same is also observed in paragraph No.18 of the judgment of the First Appellate Court that the possession also has not been proved even by examining the neighbouring owners.

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Having considered the material on record and the relief is sought for the permanent injunction and at the time of granting permanent injunction, the Court has to see the documents whether the property is in possession of the plaintiff as on the date of filing the suit, whether there is any interference. The material discloses that the suit schedule property was taken away by the Government in the year 199697 itself mentioning the same as Sarkari Beelu as per Ex.D1. Apart from that, Ex.D4 is also very clear that the Tahasildar has reserved the suit schedule property for the usage of general public for burial ground. When such being the case, Exs.D1 and D4 are not challenged by the plaintiff in order to prove the factum of possession as on the date of the suit, no material is placed before the Trial Court and even in the First Appellate

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RSA No. 156 of 2020

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Court also. Both Courts have taken note of both oral and documentary evidence placed on record and also the evidence of P.W.1 and D.W.1 and the document placed by the defendants also establishes that the suit schedule property become Government land in the year 1996-1997 itself and thereafter no such document is evident to show that the plaintiff has been in possession of the property instead of Ex.D4 discloses that the Tahasildar of Mudigere passed an order to reserve the said land for the public usage for the purpose of burial ground. Hence, rightly came to the conclusion that the defendants have proved their contention while answering issue No.2 as affirmative. Hence, I do not find any error on the part of the Trial Court as well as the First Appellate Court and the material considered by the Trial Court and the First Appellate Court based on the oral and documentary evidence and no perversity is found in the findings of both the Trial Court as well as the First Appellate Court. Hence, I do not find any ground to invoke Section 100 of CPC., to admit and frame any substantial question of law.

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RSA No. 156 of 2020

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In view of the discussions made above, I pass the

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following:

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ORDER

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The appeal is dismissed.

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In view of dismissal of the appeal, I.A.No.1/2020 for stay

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does not survive for consideration and the same stands disposed of.

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Sd/JUDGE

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CP List No.: 1 Sl No.: 40

Sri. A.M. Vijayendra v. the Government of Karnataka

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Sri. A.M. Vijayendra v. the Government of Karnataka

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