Suit for mandatory injunction to rectify FMB sketch was dismissed as not maintainable since the plaintiff had an efficacious remedy under Section 49 of the Karnataka Land Revenue Act. Second appeal dismissed, confirming concurrent findings.
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NC: 2024:KHC:31633 RSA No. 62 of 2015
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 7TH DAY OF AUGUST, 2024
BEFORE
THE HON'BLE MR JUSTICE ASHOK S.KINAGI
REGULAR SECOND APPEAL NO.62 OF 2015 (INJ)
BETWEEN:
SRI V. NARAYAN BHAT S/O VENKATARAMANA BHAT AGED ABOUT 73 YEARS R/AT SAJANKUBETTU HOUSE AJJIBETTU VILLAGE AND POST BANTWAL TALUK, D K DIST.-574201
…APPELLANT
(BY SRI. NIKHIL K.N., ADVOCATE FOR SRI. O SHIVARAMA BHAT, ADVOCATE)
AND:
Digitally signed by R DEEPA
Location: HIGH COURT OF KARNATAKA
S/O VENKATRAMANA BHAT
SINCE DEAD BY HIS LEGAL REPRESENTATIVES
1(A) N. VENKATAKRISHNA SHARMA S/O LATE V. KRISHNA BHAT AGED ABOUT 58 YEARS R/AT MULIYA HOUSE
ALIKE POST, VIA VITTAL, BANTWAL TALUK
1(B) N. MAHALINGA SHARMA S/O LATE V. KRISHNA BHAT AGED ABOUT 56 YEARS R/AT SAJANKABETTU HOUSE AJJIBETTU VILLAGE AND POST VIA VAMADAPADAVU BANTWAL TALUK - 574 324
…RESPONDENTS
(BY SRI. NEERAJA KARANTH, ADVOCATE FOR SRI. K SHRIHARI, ADVOCATE FOR R1 SRI. R.A. MACHA KANUR, ADVOCATE FOR R2 & R3)
THIS RSA IS FILED UNDER SEC.100 ORDER XLII RULE 1 OF CPC., AGAINST THE JUDGMENT AND DECREE DATED 27.9.2014 PASSED IN R.A.NO.93/2004 (RE-NUMBERED AS R.A.NO.1/2007) ON THE FILE OF THE PRL. SR. CIVIL JUDGE &
JMFC., BANTWAL, D.K, DISMISSING THE APPEAL AND CONFIRMING THE JUDGMENT AND DECREE DATED 30.3.2004 PASSED IN O.S.NO.111/1996 ON THE FILE OF THE PRL. CIVIL JUDGE (JR.DN) BANTWAL.
THIS APPEAL, COMING ON FOR ORDERS, THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER:
CORAM: HON'BLE MR JUSTICE ASHOK S.KINAGI
ORAL JUDGMENT
This regular second appeal is filed by the appellant challenging the judgment dated 27.09.2014, passed in R.A.No.93/2004 by the learned Prl. Senior Civil Judge & JMFC, Bantwal, D.K., confirming the order dated 30.03.2004, passed on preliminary issue No.8 in O.S.No.111/1996 by the learned Prl. Civil Judge (Jr.Dn.), Bantwal, D.K.
referred to as per their ranking before the trial Court. The appellant is the plaintiff and respondents are the defendants.
NC: 2024:KHC:31633 RSA No. 62 of 2015
appeal are as under:
Plaintiff filed a suit for mandatory injunction against the defendant No.3 to rectify the FMB sketch in respect of Sy.No.43/7B1 and Sy.No.43/7B2 situated at Ajjibettu Village, Bantwala Taluk, D.K. It is the case of the plaintiff that, himself and defendant No.1 are the brothers and jointly owned certain immovable properties in Ajjibettu Village and the said properties were divided as per the partition deed dated 03.06.1983. Under the said partition deed, apart from other properties, the property described in 'X' schedule was allotted to the plaintiff and the property described under 'Y' schedule along with certain other properties comprised under schedule 'A' to the partition deed were allotted to the share of defendant No.1. The RTC in respect of 'X' schedule property stands in the name of the plaintiff and the RTC in respect of 'Y' schedule property stands in the name of defendant No.1. It is contended that, in the first week of February 1995,
the plaintiff applied for certified copy of the sketch in respect of Sy.No.43/7B for filing a suit in O.S.No.41/1996.
The certified copy was issued to the plaintiff on 05.02.1996. On perusing the said sketch, plaintiff found out that the said sketch is not in accordance with the allotment of the shares under the partition deed. It is contended that, no notice was issued to the plaintiff by defendant No.3. Hence it is contended that, the sketch was prepared behind the back of the plaintiff. Hence, plaintiff filed the suit for mandatory injunction.
suit is not maintainable in view of Section 49 of the Karnataka Land Revenue Act, 1964. Hence, prayed to dismiss the suit.
preliminary issue No.8 in the above said suit, filed an appeal in R.A.No.93/2004, renumbered as R.A.No.1/2007.
The First Appellate Court, on re-appreciation of the material evidence on record, dismissed the appeal with costs, confirming the order passed by the trial Court on preliminary issue No.8. The plaintiff aggrieved by the same, has filed this second appeal.
NC: 2024:KHC:31633 RSA No. 62 of 2015
the suit filed by the plaintiff is maintainable and the trial Court has committed an error in treating issue No.8 as preliminary issue and the plaintiff has filed the suit for rectification of FMB sketch. Hence the suit filed by the plaintiff is maintainable and prayed to allow the appeal.
submissions of learned counsel for the plaintiff.
alternative remedy, has filed the suit for mandatory injunction. As per Section 41(h) of the Specific Relief Act, 1963, which provides that an injunction can be refused when equal efficacious relief can certainly be obtained by any other usual mode of proceeding except in case of breach of trust. The plaintiff has got equal efficacious remedy under Section 49 of the Karnataka Land Revenue Act, 1964. Hence, under Section 41(h) of the Specific Relief Act, 1963, the suit of the plaintiff is not maintainable and the same is filed without exhausting efficacious remedy. The trial Court was justified in answering preliminary issue No.8 in affirmative and consequently dismissing the suit as not maintainable. The first Appellate Court on re-appreciation of the material on record, was justified in confirming the order passed by the trial Court on preliminary issue No.8. Hence, I do not find any substantial question of law that arise for consideration in this appeal.
NC: 2024:KHC:31633 RSA No. 62 of 2015
pass the following:
ORDER
The appeal is dismissed.
Consequently, the judgment and order passed by the courts below are hereby confirmed. Liberty is reserved in favour of the plaintiff to challenge the FMB sketch before the appropriate forum.
No order as to the costs.
SD/(ASHOK S. KINAGI) JUDGE
RD
1 issue framed by the court
Whether a suit for mandatory injunction to rectify an FMB sketch is maintainable when the plaintiff has an efficacious remedy under Section 49 of the Karnataka Land Revenue Act.
3 provisions across 3 enactments
Sri V. Narayan Bhat
Sri V Krishna Bhat (since dead, by legal representatives N. Venkatakrishna Sharma and others)
The State of Karnataka
The Assistant Director of Land Records
Ashok S. Kinagi
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
