Dismissed

Shri. Ramu Yallappa Kunnarkar v. Smt. Mallavva W/O. Mallappa Kurubar

Karnataka HC12 Jul 2024RSA/100396/2018

Case brief

AI extract

What is this about?

Second appeal against dismissal of a permanent injunction suit where plaintiff claimed possession as protected tenant. Both courts below had found occupancy rights were granted to defendant's predecessor by Land Tribunal order and affirmed in writ proceedings. High Court held no substantial question of law arose and dismissed the appeal at admission.

What the court decided

AI extract

Shri. Ramu Yallappa Kunnarkar Vs Smt. Mallavva W/O… — Landlord and Tenant | Karnataka HC (2024)

¶1

¶2

NC: 2024:KHC-D:9787 RSA No. 100396 of 2018

¶3

IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH

¶4

DATED THIS THE 12^TH DAY OF JULY, 2024

¶5

BEFORE

¶6

THE HON'BLE MR JUSTICE C.M. POONACHA

¶7

REGULAR SECOND APPEAL NO. 100396 OF 2018 (INJ-)

¶8

BETWEEN:

¶9

SHRI. RAMU YALLAPPA KUNNARKAR AGE: 74 YEARS, OCC: AGRICULTURIST, R/O. BELAGUNDI, TQ. & DIST: BELAGAVI-591108. (BY SRI JAGADISH PATIL, ADVOCATE)

¶10

…APPELLANT

¶11

AND:

¶12

Digitally signed by SAROJA HANGARAKI

¶13

Location: HIGH COURT OF KARNATAKA DHARWAD BENCH DHARWAD

¶14

SMT. MALLAVVA W/O. MALLAPPA KURBAR SINCE DECEASED BY HIS LR SHRI BALU S/O MALLAPPA KURBAR AGE: 50 YEARS, OCC: AGRICULTURIST, R/O. BELAGUNDI, TQ. & DIST: BELAGAVI-591108. (BY SRI P.S.PATIL AND A.R. PATIL, ADVOCATES)

¶15

…RESPONDENTS

¶16

THIS RSA IS FILED U/S 100 R/W ORDER 41 RULE 1 OF CPC, PRAYING TO ALLOW THE APPEAL AND SET ASIDE THE JUDGMENT AND DECREE DATED 07.12.2017 PASSED BY THE III ADDITIONAL SENIOR CIVIL JUDGE, BELAGAVI IN R.A.NO.113/2016 AND THE JUDGMENT AND DECREE DATED 03.10.2016 PASSED BY THE PRINCIPAL CIVIL JUDGE AND JMFC, BELAGAVI IN O.S.NO.413/2013 AND DECREE THE SUIT BEARING O.S.NO.413/2013

¶17

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

¶18

¶19

NC: 2024:KHC-D:9787 RSA No. 100396 of 2018

¶20

JUDGMENT

¶21

The present second appeal is filed by plaintiff under Section 100 of Code of Civil Procedure, 1908¹ challenging the judgment and decree dated 07.12.2017 passed in R.A No.113/2016 by the III Additional Senior Civil Judge, Belagavi² and the judgment and decree dated 03.10.2016 passed in O.S No.413/2013 by the Principal Civil Judge and JMFC, Belagavi³ , whereunder, the suit for permanent injunction has been dismissed with cost by the Trial cost, which has been affirmed by the First Appellate Court.

¶22

The parties will be referred to as per their ranking before the Trial Court, for the sake of convenience.

¶23

It is the case of the plaintiff that he is a permanent resident of Belgundi village and doing agricultural work in the suit property measuring 32 guntas in R.S No.75/3, situated at Belgundi village, Belagavi district⁴ , as well as in the properties covered under O.S No.146/2002 pending before the learned II Additional Civil Judge and JMFC, Belagavi, with the help of his sons and family members. That the suit land is standing in the

¶24

1 Hereinafter referred to as ‘CPC’

¶25

2 Hereinafter referred to as the ‘first appellate Court’

¶26

3 Hereinafter referred to as the ‘Trial Court’

¶27

4 Hereafter referred to as the ‘suit properties’

¶28

3 - NC: 2024:KHC-D:9787 RSA No. 100396 of 2018

¶29

name of defendant No.2, and defendant No.1 is helping to in agricultural works. That the Mallappa Fakira Kurbar is the original owner of the suit property and he died on 29.07.2000, leaving behind his wife as his legal heir (defendant No.1). Since, he did not have any issues, they have adopted defendant No.2.

¶30

It is the further case of the plaintiff that the deceased brother of plaintiff by name Balu and another brother by name Laxman were cultivating all the suit lands as protected tenants since from 1955. But the owner of Mallappa Fakira Kurbar has given waradi to the Village Accountant, Belgundi village, stated that the brother of the plaintiff is cultivating the suit land as permanent tenant to an extent of 32 guntas only on 18.08.1969. That the plaintiff is protected tenant, cultivating the suit property and getting seasonal crop.

¶31

It is further averred that as per dairy No.1533 dated 12.11.1965, the name of the brother of the plaintiff is appearing as protected tenant to an extent of 38 guntas, and the name of brother of the plaintiff is appearing in the record of rights since long. That only for the family arrangement, the name of brother of the plaintiff i.e., Balu alone is appearing in

¶32

4 - NC: 2024:KHC-D:9787 RSA No. 100396 of 2018

¶33

the said records and the plaintiff along with his brothers Balu and Laxman were cultivating the said land jointly.

¶34

It is further averred that the plaintiff had, along with his brothers Balu and Laxman, filed an application U/sec.48/A(1) of the Karnataka Land Reforms Act, 1961⁵ before the Land Tribunal, Belagavi, for getting occupancy rights of suit land and other properties against the defendants and others in O.S No.146/2002, before the learned II Additional Civil Judge and JMFC, Belagavi, and the said case was disposed off, by the Land Tribunal on 12.11.1976 by denying the claim of the plaintiff. In connection with the said suit property in order No.LRM/Belagundi/SR.4, the land Tribunal had already taken a decision which was not known to the plaintiff as no notices was served by the Land Tribunal on him before passing the orders.

¶35

That the plaintiff has approached higher authorities and subsequently his bother Balu filed W.P No.1786/77 and W.P No.2937/92, and the same came to be allowed by the Hon’ble High Court of Karnataka against the concerned defendants and remanded back to the Tribunal for disposal in accordance with law and that the suit land is also questioned in

¶36

5 Hereinafter referred to as the ‘Act of 1961’

¶37

5 - NC: 2024:KHC-D:9787 RSA No. 100396 of 2018

¶38

the said order. That after remand, the Belagavi Land Tribunal has decided the matter, and the plaintiffs have filed Writ Petition before the Hon’ble High Court of Karnataka and the same is pending for consideration.

¶39

It is the further case of the plaintiff that he is

¶40

cultivating the suit land to an extent of 32 guntas, since the very lands were originally being cultivated by the plaintiff and his brothers. That the subsequent sale and purchase, without knowledge of the plaintiff and his brothers, are illegal in view of the proceedings pending before the Land Tribunal. That till date of suit, the plaintiff was cultivating the suit land. Along with the other properties, the defendants have no right, title or possession over the same.

¶41

It is further averred that while filing O.S No.146/2002 by over sight the amendment application to include the present property in the said suit was rejected. The challenge made in W.P No.71379/2012 came to be decided on 04.02.2012, wherein, it was ordered that, “reserving liberty to the plaintiff herein to file a fresh suit in respect of property covered by the plaint in O.S No.146/2012 if not barred by law of limitation”. That the defendants had knowledge of the order

¶42

6 - NC: 2024:KHC-D:9787 RSA No. 100396 of 2018

¶43

and on seeing the order, are trying to interfere with possession and enjoyment of the suit property without due process of law. That the cause of action for the suit arose in the first week of February-2002 and the defendants denied the possession and tried to make illegal acts over the suit schedule property, and tried to obstruct the possession over the same. Hence, the suit was filed.

¶44

The defendants No.1 and 2 entered appearance through their counsels and filed written statement by denying the case of the plaintiff.

¶45

The defendants admitted that the suit land is tenanted land but denied that the plaintiff and his brother Balu as well as another brother Laxman have cultivated the said land as protected tenants. That Mallappa Fakira Kurbar filed O.S No.357/1970 against these defendants for injunction in respect of R.S No.75/3 measuring 32 guntas, and the said suit came to be decreed in favour of father of defendant No.2. That R.A No.193/1975, filed by the plaintiff has been dismissed, by confirming the possession of the father of defendant No.2. That the alleged waradi given to the Village Accountant by Mallappa

¶46

7 - NC: 2024:KHC-D:9787 RSA No. 100396 of 2018

¶47

Fakira Kurbar is bogus, false and fabricated which cannot be relied upon.

¶48

It is further contended that the suit land was a tenanted land and one Motichand Manaji Lengade was land lord, and after coming into force of Act of 1961, the Mallappa Fakira Kurbar filed form No.7 for grant of occupancy rights in respect of suit property in his favour and the Land Tribunal granted occupancy rights in his favour, vide order dated 22.07.1976. That the plaintiff preferred W.P No.1786/1977 before the Hon’ble High Court which did not set aside the order of the Land Tribunal. Hence, it is contended that the defendants are in actual, continuous and uninterrupted possession of the suit property till date. That the plaintiffs are not concerned with the suit land, and the plaintiffs have filed the suit against the defendants with an intention to harass them.

¶49

It is further averred that neither the plaintiff nor his brother have ever cultivated the suit land and were never in possession of the same in any capacity. That the defendants have not sold the suit schedule property, and they are in possession and enjoyment of the same till today. That there is no pleading or prayer in respect of the suit property in O.S

¶50

8 - NC: 2024:KHC-D:9787 RSA No. 100396 of 2018

¶51

No.146/2002. That at the stage of cross of DW.1, the plaintiff filed an application for amendment to bring the suit property in the said suit and the said application was rejected. That the plaintiff is not diligent in prosecuting O.S No.146/2002 or the present suit. That it is well within the knowledge of the plaintiff regarding the judgment and decree passed in O.S No.357/1970 dated 12.07.1973 in favour of the defendant No.1 as well as the decree dated 20.09.1976 passed in R.A No.193/1973. That the plaintiff is also having knowledge regarding the order passed by the Land Tribunal as well as W.P No.1786/1977. That though the plaintiffs are knowing that, the defendants are in possession and enjoyment of the suit property, they have filed the false suit and the same is barred by law of limitation. Hence, the defendants sought for dismissal of the suit.

¶52

Consequent to the pleadings of the parties, the Trial

¶53

Court framed the following issues:

¶54

i. “Whether plaintiff proves that he is in possession of suit schedule property as pleaded in the plaint?

¶55

ii. Does plaintiff proves the alleged interference?

¶56

iii. Whether defendants prove that description of the suit schedule property is not correct?

¶57

iv. Whether defendants prove that suit is hit by principles of res-judicata?

¶58

9 - NC: 2024:KHC-D:9787 RSA No. 100396 of 2018

¶59

v. Whether defendants prove that the suit is not maintainable?

¶60

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

¶61

vii. What order or decree?”

¶62

The Trial Court by its judgment and decree dated

¶63

03.10.2016, dismissed the suit with cost. Being aggrieved, the plaintiff preferred R.A No.113/2016. The First Appellate Court framed the following points for consideration:

¶64

i. “ Whether the plaintiff established that he is in possession of the suit schedule property as on the date of filing of the suit?

¶65

ii. Whether the plaintiff established that the defendants interfered with his peaceful possession and enjoyment of the suit property?

¶66

iii. Whether the plaintiff is entitled to the reliefs sought in the suit?

¶67

iv. Whether the findings given by the Trial Court requires interference by this Court?

¶68

v. What order?”

¶69

The First Appellate Court by its judgment dated

¶70

07.11.2017, dismissed the appeal. Being aggrieved, the present second appeal is filed.

¶71

Learned counsel for the appellant vehemently contends that both the Courts have concurrently erred in

¶72

10 - NC: 2024:KHC-D:9787 RSA No. 100396 of 2018

¶73

dismissing the suit and further submits that the plaintiff along with his brother Balu, have been cultivating the suit properties as protected tenants since 1955 and the injunction as sought for ought to have been granted. Hence, it is contended that the above appeal is liable to be allowed and the relief sought for is required to be granted.

¶74

The submissions of learned counsel for the appellant have been considered and material on record have been perused.

¶75

The Trial Court, while considering the issues framed by it, has recorded the following findings:

¶76

i. In the present suit although it is averred in the plaint regarding the plaintiff seeking for occupancy rights in respect of the suit property which was rejected by the Land Tribunal and thereafter, a Writ Petition was preferred which was remanded and that in the second round, the matter was disposed of, however no documents have been produced by the plaintiff in that regard;

¶77

ii. PW.1 admitted that, on 22.07.1976, occupancy rights have been given to the husband of defendant

¶78

11 -

¶79

NC: 2024:KHC-D:9787 RSA No. 100396 of 2018

¶80

No.1 in respect of the suit property as the tenant. Though he contended that he challenged the said order by preferring W.P No.1786/1977, there are no recitals with regard to the suit property;

¶81

iii. The evidence of PW.1 is shaky in order to prove his possession and enjoyment as well as alleged interference made by the defendant;

¶82

iv. No doubt PW.2 and PW.3 have been examined in support of case of the plaintiff. However, during the course of cross-examination they admitted that they do not know the measurements as well as the boundaries of the suit property;

¶83

v. A close reading of Ex.P1 R.T.C discloses that the name of defendant No.2 based upon inheritance pertaining to the year 2012-2013 is entered;

¶84

vi. On going through Ex.P2, in cultivators column, from 1960-1970 till 1975-1976, the name of husband of defendant No.1 finds a place;

¶85

vii. The document at Ex.D1 and Ex.D2 is undisputed document, and since 1969-1970, the name of

¶86

12 -

¶87

NC: 2024:KHC-D:9787 RSA No. 100396 of 2018

¶88

husband of defendant No.1 has been continued and thereafter, name of defendant No.1 finds a place;

¶89

viii. In order to rebut the genuineness of document at Ex.D1 and Ex.D2, the plaintiff has not chosen to produce any contra document;

¶90

ix. Ex.P3 the right certificate also discloses the name of father of defendant No.1 in respect of the suit schedule property pertaining to undisputed point of time dated 21.11.1965;

¶91

x. Ex.P7 is the order passed by the Land Tribunal

¶92

dated 12.11.1976, filed by the plaintiff wherein he is one of the applicant against the father of defendant No.1 and others. On close reading of the said order, the Land Tribunal has specifically held that as regard the suit property, the Tribunal has taken a decision in case No.LRM/Belagundi/SR.36106-106A-106B-106C dated 22.7.1976 and hence, the issue cannot be reopened. The said observations made by the Tribunal were also upheld in later decision of Writ Petitions produced by the defendants.

¶93

13 -

¶94

NC: 2024:KHC-D:9787 RSA No. 100396 of 2018

¶95

The First Appellate Court upon a re-appreciation of the material on record, has recorded the following findings:

¶96

i. It appears that, the plaintiff and his 2 brothers had applied U/Sec.48A(1) of the KLR Act to register them as occupants. In that proceedings, the plaintiff and his brothers had produced a certified copy of wardi given by the Mallappa Fakira Kurbar to the Village Accountant, Belgundi dated 11.08.1969 wherein it was mentioned that he has no objections to enter the name of Balu Yallappa Kannurkar as his sub tenant. On the basis of that wardi the name of Balu Yallappa Kannurkar came to be entered in the cultivators’ column of record of rights of Sy.No.343/1, 343/4 as tenant. However, Mallappa Fakira Kurbar denied that aspect and preferred an appeal to the Assistant Commissioner, Belagavi on 28.02.1970 against the entering of the name of Balu Kannurkar in the tenancy column of record of rights of the above mentioned survey numbers;

¶97

14 -

¶98

NC: 2024:KHC-D:9787 RSA No. 100396 of 2018

¶99

ii. The Assistant Commissioner after hearing both the parties allowed the appeal vide its order No.TS.A.P.15/1970 DATED 07.07.1970 and remanded the case to the Tahasildar, Belagavi for further enquiry. While giving findings, the land Tribunal, Belagavi has opined that the applicants/Balu, Laxman, Ramu, sons of Yallappa Kannurkar have not proved that they are in lawful possession and cultivation of the suit lands in Sy.No.343/1, 343/4 and 76/1+3 of Belagavi. Hence, the request for the grant of occupancy rights of these survey numbers was rejected. Further, the Tribunal held that as regard to Sy.No.75/3 of Belgundi village, the Tribunal has already taken decision in the case bearing No.LRM/Belgundi/SR-36-106-106A-106B-106C dated 22.07.1976 and that issue cannot be therefore re-opened;

¶100

iii. Aggrieved by the orders of the Land Tribunal, Belagavi, Shri.Balu Yallappa Kannurkar and his brother, the plaintiff herein had filed W.P

¶101

15 - NC: 2024:KHC-D:9787 RSA No. 100396 of 2018

¶102

No.1786/1977 before the Hon’ble High Court of Karnataka. While dismissing the Writ Petition, the Hon’ble High Court has held that the order of Tribunal in respect of Sy.No.75/3 remains undisturbed. The DW.1 has produced the certified copy of that orders passed in W.P No.1786/1977, which is marked as Ex.D1.

¶103

Hence, the First Appellate Court has held that the plaintiff or his children are not in possession of the suit property.

¶104

The First Appellate Court after a detailed reappreciation of the oral and documentary evidence on record has dismissed the appeal and affirmed the judgment and decree passed by the Trial Court.

¶105

It is forthcoming from the aforementioned that the claim made by the plaintiff as protected tenant has already been decided by the Land Tribunal by its order dated 22.7.1976. The subsequent proceeding initiated by the plaintiffs along with few others has been rejected by the Land Tribunal, which has been affirmed by this Court in W.P No.1786/77(Ex.D1). Hence, both the Courts have concurrently

¶106

16 - NC: 2024:KHC-D:9787 RSA No. 100396 of 2018

¶107

held that the plaintiff has failed to prove that he is in possession of the suit property.

¶108

Both the Courts have adequately appreciated and re-appreciated the oral and documentary evidence on record while dismissing the suit. The appellants have failed in demonstrating that the said concurrent findings recorded by both the Courts are in any manner erroneous as having been recorded without considering any specific, oral or documentary evidence on record.

¶109

In view of the aforementioned, the appellants have

¶110

failed in demonstrating that any substantial question of law arises for consideration in the above appeal.

¶111

Hence, the above appeal is dismissed as being devoid of merit at the stage of admission itself.

¶112

Sd/JUDGE

¶113

List No.: 1 Sl No.: 35

¶114

PMP CT:GSM

Shri. Ramu Yallappa Kunnarkar v. Smt. Mallavva W/O. Mallappa Kurubar

Case brief

What is this about?

What the court decided

Shri. Ramu Yallappa Kunnarkar v. Smt. Mallavva W/O. Mallappa Kurubar

Case brief

What is this about?

What the court decided

A compact analysis

Issues for consideration

Statutes considered

Parties & counsel

Coram

Case details

Similar cases

Sri Nandu S/O Narayan Naik Vs Sri Gajanana

Bhagyodaya Education Society Vs Smt. Mallawwa W/O Sangappa Kalatippi

Girish S/O Premanand Jambavalikar Vs Pandurang Bhikaro Sunkeri

Nama Sunil Vs Mahalasa Narayanji Jewellers

Nagavva W/O Nagappa Marigoudar Vs Chandrappa S/O Mallappa Banakar

Umabai W/O Ramachandra Naik Vs Shivaram S/O Jatti Naik