Dismissed

Smt. Appi, v. Puttur Taluk the Tahsildar

Karnataka HC18 Apr 2024RSA/419/2024

Case brief

AI extract

What is this about?

This is a second appeal regarding a suit for declaration and injunction concerning kumki land rights. The High Court dismissed the appeal, holding that the lower courts correctly found the plaintiffs failed to prove the 'B' schedule property was kumki land or that they were in possession, and noted such classification is a domain of Revenue Authorities.

What did the court decide?

The appeal was dismissed confirming the judgment and decree of the Trial Court and First Appellate Court.

Smt. Appi, Vs Puttur Taluk the Tahsildar — Partition | Karnataka HC (2024)

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NC: 2024:KHC:15340 RSA No. 419 of 2024

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

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DATED THIS THE 18^TH DAY OF APRIL, 2024

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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. 419 OF 2024 (DEC/INJ)

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BETWEEN:

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SMT. APPI, AGED ABOUT 48 YEARS, W/O SANJEEVA SALIAN, R/AT KALAI HOUSE,

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MACHINA VILLAGE, BELTHANGADY TALUK, D K - 574 224.

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SMT. BHAVANI

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AGED ABOUT 32 YEARS,

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D/O LATE SHIVAPPA POOJARY,

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Digitally signed by SHAKAMBARI Location: High Court of Karnataka

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R/AT THOTA HOUSE, PADNOOR VILLAGE, PUTTUR TALUK, D K - 574 220.

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SMT. SUNDARI

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AGED ABOUT 55 YEARS, D/O LATE SHIVAPPA POOJARY, R/AT THOTA HOUSE, PADNOOR VILLAGE, PUTTUR TALUK, D K - 574 220.

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MR RAMESH AGED ABOUT 45 YEARS,

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NC: 2024:KHC:15340 RSA No. 419 of 2024

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S/O LATE BABU POOJARY, R/AT KAPIKADU BONDALA HOUSE, PANEMANGALURU VILLAGE, BANTWAL TALUK, D K - 574 231.

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…APPELLANTS

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(BY SRI. KARUNAKARA P.,ADVOCATE)

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AND:

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PUTTUR TALUK THE TAHASILDAR, MINI VIDHANA SOUDHA, PUTTUR, D K - 574 201.

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GOVERNMENT OF KARNATAKA REP. BY DEPUTY COMMISSIONER, D.K, MANGALURU - 575 008.

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…RESPONDENTS

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THIS RSA IS FILED UNDER SEC.100 OF CPC., AGAINST THE JUDGMENT AND DECREE DATED:06.02.2024 PASSED IN RA NO.1/2021 ON THE FILE OF PRL. SENIOR CIVIL JUDGE AND JMFC, PUTTUR TALUK, D.K., DISMISSING THE APPEAL AND CONFIRMING THE JUDGMENT AND DECREE DATED 27.11.2020 PASSED IN OS NO.95/2015 ON THE FILE OF ADDITIONAL CIVIL JUDGE AND JMFC, PUTTUR, D.K.,

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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 plaintiffs aggrieved by the judgment and decree dated 27.11.2020 passed in O.S.No.95/2016 (Old O.S.No.199/2011) on the file of Additional Civil Judge and J.M.F.C, Puttur (hereinafter 'the Trial

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NC: 2024:KHC:15340 RSA No. 419 of 2024

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Court') which is confirmed by the judgment and order dated 06.02.2024 passed in R.A.No.1/2021 on the file of Prl. Senior Civil Judge and J.M.F.C, Puttur (hereinafter 'the First Appellate Court').

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The above suit in O.S.No.95/2016 is filed by the plaintiffs claiming ownership in respect of lands bearing Sy.No. 6/3A4 measuring 0.20 acres, Sy. No. 8/5 measuring 0.46 acres, Sy. No. 6/3A3 measuring 0.32 acres, Sy. No. 8/2 measuring 0.58 acres, Sy. No. 6/3A6 measuring 0.90 acres and Sy. No. 8/4 measuring 0.46 acres are situated in Padnoor Village, Puttur Taluk, D.K.

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2.1 The plaintiff No.1 claims to be the owner of the kadim warg land, which is item No.1 and 2 of A schedule property, plaintiff No.2 claims to be the owner of kadim warg land in the item No.3 and 4 of 'A' schedule property and plaintiff No.3 also claims to be the owner of kadim warg land in item No.5 and 6 of 'A' schedule property. It is contended that aforesaid lands are kumki privilege abutting the Government land having 450 links from the plaint 'A' schedule property, adjacent to the plaint B schedule properties. The RTC relating to 'A' schedule

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4 - NC: 2024:KHC:15340 RSA No. 419 of 2024

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property stands in the name of plaintiffs and they are in peaceful possession and enjoyment of the plaint 'A' and 'B' schedule properties. The plaintiffs are entitled to enjoy kumki privilege over the entire plaint 'B' schedule property without any obstruction.

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2.2. It is their further case that they have filed a suit in O.S.No.163/2007 against one Janardhana Bhat and others. That defendant No.1 who was aware about the said suit in O.S.No. 163/2007. Despite the same defendant No.1 is intending to grant some portions of plaint B schedule property to said Janardhana Bhat. The defendant No.1 has no right over the kumki privilege of the plaintiffs are interfering with the peaceful possession of the kumki privilege of the plaintiffs until the same is withdrawn. Hence, plaintiffs filed the suit.

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Defendants appeared through Additional Government Pleader filed their written statement contending that the suit is not maintainable under law or on facts of the case. It is contended that defendant No.1 has initiated the proceedings for reservation of the properties bearing Sy.No.9/P2 measuring 19 cents and Sy.No.146/1P2 measuring 40 cents of Padnoor

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Village, Puttur Taluk, for the purpose of Daivasthan as per the request of the villagers of Padnoor Village. That when the survey was conducted in that it was found proposed properties sought for the reservation of the Daivasthan was beyond the kumki land of the plaintiffs. That the defendant has no intention to grant any portion of kumki properties belonging to said Janardhana Bhat. The subject property is reserved for the Daivasthana which is the absolute property of the State Government. Hence, sought for dismissal of the suit.

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Based on the pleadings, the Trial Court framed the following issues for its consideration:

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"(i) Whether the plaintiffs prove that the B schedule property forms kumki to the A schedule property?

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(ii) Whether the plaintiffs prove that they are in possession and enjoyment of the suit.

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(iii) Whether the plaintiffs prove the defendants interference as pleaded in the plaint?

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(iv) Whether the plaintiffs are entitled for the relief's as claimed in the plaint?

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(v) What order or decree?''

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One G.P.A. holder of plaintiff No.3 examined herself as PW.1, one additional witness by name Smt.Bharathi has been examined in favour of plaintiffs examined as PW.2 plaintiff

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6 - NC: 2024:KHC:15340 RSA No. 419 of 2024

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Nos.1 and 2 have examined themselves as PW.3 and PW.4 and exhibited 36 documents marked as Ex.P1 to Ex.P36. In order to prove their defence, defendant No.1 examined himself as DW1. and exhibited one document marked as Ex.D1. On appreciation of the evidence the Trial Court answered issue Nos.1 to 4 in the negative and consequently dismissed the suit as prayed for.

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Being aggrieved by the aforesaid judgment and decree defendant filed an appeal in R.A.No.1/2021 before the First Appellate Court. Considering the grounds urged the First Appellate Court framed the following points for its

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consideration:

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"1. Whether the Trial Court has not considered the evidence placed on record in a proper perspective and the judgment of the trial Court suffers from infirmities?

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2. Whether the Trial Court erred in dismissing the suit?

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3. Whether grounds are made out to decree the suit and grant the relief of declaration and injunction as claimed in the suit?

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4. Whether the appeal deserves to be allowed ?

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5. What Order?"

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On re-appreciation of the evidences, the First Appellate

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Court answered point Nos.1 to 4 in the negative and consequently dismissed the appeal confirming the judgment

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NC: 2024:KHC:15340 RSA No. 419 of 2024

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and decree passed by the Trial Court. Being aggrieved by the same defendant/appellant is before this Court.

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Sri.Karunakara.P, learned counsel for the appellant reiterating the grounds urged in the memorandum of the appeal submitted that the suit is one for declaration and injunction based on plaintiffs right over the kumki lands. He submits that the plaintiffs have filed Form No.53 as provided under the Karnataka Land Revenue Act, 1964 seeking grant of the said land and same is pending consideration. He further submits that plaintiffs were constrained to file the suit inasmuch as defendant-authorities were making hectic efforts to grant the said land in favour of the third parties depriving the plaintiffs legitimate entitlement over the 'B' schedule property which is a kumki land. Thus, he submits that the Trial Court and the First Appellate Court have grossly erred in declining the relief of declaration and permanent injunction as sought for by the plaintiffs giving raise to substantial question of law to be answered at the hands of this Court.

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Heard. Perused the records.

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The very premise on which the plaintiffs seeking their right is in the nature of declaration that the 'B' schedule property is a kumki land attached to the 'A' schedule property and the plaintiffs having privilege right over the same and thereby injunct the respondents from interfering with the possession of same. The Trial Court and the First Appellate Court on appreciation of the evidence has found that the plaintiffs have failed to prove that the 'B' schedule property forms kumki to the warg property described in their plaint 'A' schedule property and that the plaintiffs have failed to prove their possession over the 'B' schedule property.

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Further, kumki rights are a concession granted by the State subject to special orders passed under the provisions of the Karnataka Land Revenue Act, 1964. Such relief cannot be granted by way of declaration as the same falls within the domain of the Karnataka Land Revenue Act, 1964. Classification of the nature of land cannot be a matter of consideration by the Civil Court as the same has to be done in the manner known to law by the Revenue Authorities. Further even as submitted by learned counsel for the plaintiffs the very application of the plaintiffs is admittedly pending consideration

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before the Revenue Authorities. Same cannot be made a subject matter of the suit as sought to be done in the present appeal. The Trial Court and the First Appellate Court on appreciation of the evidence has come to the just and proper conclusion which cannot be found fault with.

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No substantial question of law would arise for consideration in this appeal. Accordingly, this appeal is dismissed confirming the judgment and decree passed by the Trial Court and the First Appellate Court.

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It is made clear that the rights, entitlement of the plaintiffs/appellants if any for the relevant points of law be considered without being influenced with the dismissal of the appeal.

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Sd/JUDGE

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List No.: 1 Sl No.: 20

Smt. Appi, v. Puttur Taluk the Tahsildar

Case brief

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Smt. Appi, v. Puttur Taluk the Tahsildar

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