Allowed

H C Duggappa Gowda v. State of Karnataka

Karnataka HC28 Aug 2024RSA/784/2009

Case brief

AI extract

What is this about?

Regular second appeal against judgment dismissing suit for declaration regarding alleged illegal footpath. High Court held suit maintainable under Section 103(3) KLR Act as order sought revisionary jurisdiction of appellate tribunal without civil suit remedy.

What did the court decide?

Impugned judgments and decrees set aside; Civil Suit restored to Trial Court for disposal on merits.

H C Duggappa Gowda Vs State of Karnataka — Landlord and Tenant | Karnataka HC (2024)

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NC: 2024:KHC:34606 RSA No. 784 of 2009

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

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DATED THIS THE 28^TH DAY OF AUGUST, 2024

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BEFORE

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THE HON'BLE MR JUSTICE ASHOK S.KINAGI

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REGULAR SECOND APPEAL NO. 784 OF 2009 (DEC/INJ)

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BETWEEN:

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H C DUGGAPPA GOWDA S/O CHANNANA GOWDA SINCE DEAD BY HIS LEGAL REPRESENTATIVES

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1(A) SOHAN KUMAR S/O J.D. ASHOK AGED ABOUT 21 YEARS R/O JATTINAMAKKI, VATAGARU VILLAGE THIRTHAHALLI TALUK - 577 415 SHIVAMOGGA DISTRICT.

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Digitally signed by R DEEPA Location: HIGH COURT OF KARNATAKA

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J.D. ASHOKA S/O H.C DUGGAPPA GOWDA AGED ABOUT 59 YEARS R/O JETTINAMAKKI, VATAGARU VILLAGE, THIRTHAHALLI TQ., SHIMOGA DIST.

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….APPELLANTS

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(BY SRI. S V PRAKASH, ADVOCATE FOR LR OF A1(A) SRI. ROHIT C GANESH R., ADVOCATE)

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AND:

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STATE OF KARNATAKA BY ITS CHIEF SECRETARY VIDHANA SOUDHA, BANGALORE - 560 001

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THE TAHASILDAR THIRTHAHALLI TQ. THIRTHAHALLI - 577 432 SHIVAMOGGA DISTRICT.

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THE SUB INSPECTOR OF POLICE THIRTHAHALLI POLICE STATION, THIRTHAHALLI - 577 432 SHIVAMOGGA DISTRICT.

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J.N. KRISHNAMURTHY S/O NAGAPPA GOWDA,

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J.N. THIMMAPPA S/O NAGAPPA GOWDA,

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THAMMAIAH S/O NAGAPPA GOWDA

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SEETHAMMA W/O NAGAPPA GOWDA

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NAGAPPACHAR S/O SHAMACHARI

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MANJUNATHA S/O SHAMACHARI

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CHANDRASHEKARA S/O SRINIVASACHARI

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RESPONDENTS 4 TO 10 ARE MAJORS, R/O JETTINAMAKKI, VATAGARU VILLAGE, THIRTHAHALLI TQ. - 577 415 SHIVAMOGGA DISTRICT.

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….RESPONDENTS

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(BY SRI. R.A. MACHAKANUR, AGA FOR R1-R3 SRI. B.S. PRASAD, ADVOCATE FOR R4 TO R8 SRI. RAVIVARMA KUMAR, ADVOCATE FOR R4 TO R10)

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THIS RSA IS FILED U/S. 100 OF CPC AGAINST THE JUDGEMENT & DECREE DATED 18.4.2009 PASSED IN R.A.NO.31/2007 ON THE FILE OF THE II ADDL. CIVIL JUDGE (SR.DN.), SHIMOGA, PARTLY ALLOWING THE APPEAL FILED AGAINST THE JUDGEMENT AND DECREE DATED 29.1.2007 PASSED IN OS.NO. 127/2001 ON THE FILE OF THE CIVIL JUDGE (JR.DN.) & JMFC, THIRTHAHALLI.

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THIS APPEAL, COMING ON FOR HEARING, THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER:

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CORAM: HON'BLE MR JUSTICE ASHOK S.KINAGI

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ORAL JUDGMENT

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This regular second appeal is filed by the appellants challenging the judgment and decree dated 18.04.2009, passed in R.A.No.31/2007 by the learned II Addl. Civil Judge (Sr.Dn.), Shimoga, confirming the judgment and decree dated 29.01.2007, passed in O.S.No.127/2001 on the preliminary issues, by the learned Civil Judge (Jr.Dn.) & JMFC, Thirthahalli.

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For convenience, parties are referred to as per their ranking before the trial Court. The appellants are the plaintiffs, and the respondents are the defendants.

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NC: 2024:KHC:34606 RSA No. 784 of 2009

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The brief facts leading rise to the filing of this appeal are as follows:

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Plaintiffs filed a suit for declaration that the order passed by defendant No.2 - Tahsildar, Thirthahalli Taluk in case No.EVN/CR.79/99-2000 dated 14.08.2000, in respect of the alleged footpath shown in Sy.No.18 of Vatagaru Village in the village map is illegal, void and without jurisdiction and also sought for permanent injunction restraining the defendants from interfering, forming the alleged footpath in pursuance of the order of the Tahsildar. Plaintiffs No.1 and 2 are the father and son and members

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of Hindu joint family. The said residential house surrounded with an area approximately measuring 1 acre and plaintiffs are in possession and enjoyment of 2 acres of land in Sy.No.18 of Vatagaru village, adjacent to the residential house. Defendants No.4 to 10 are the villagers of Vatagaru village and they are not in good terms with the plaintiffs. The residential house of the plaintiffs finds a place in the village map and public road running from Thirthahalli to Koppa is situated on the western side of the

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plaintiffs' house. The said road is a public road and also shown in the village map and the same is still in existence. It is contended that the plaintiffs have formed a road from Thirthahalli to Koppa, the public road leading to their residential house, width of 15' and length of 250'. It is contended that because of political rivalry, plaintiffs and defendants 4 to 10 approached defendant No.2 to arrange for restoration of footpath as shown in the village map. Defendant No.2 under his delegated power under Section 103(2) of the Karnataka Land Revenue Act, 1964 ('the KLR Act', for short) , has passed an order. The plaintiffs aggrieved by the said order passed by defendant No.2, preferred an appeal before the Karnataka Appellate Tribunal and the said appeal was dismissed. The plaintiffs preferred a writ petition in W.P.No.37336/2000 and this Court disposed of the writ petition vide order dated 25.06.2001, holding that the order passed by defendant No.2 is subjected to the civil suit as contemplated under Section 103(3) of the KLR Act. The plaintiffs got issued legal notice to the defendant No.2 and the Deputy

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Commissioner, Shimoga District dated 04.07.2001.

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Neither defendant No.2, nor the Deputy Commissioner have replied to the legal notice. Hence cause of action arose for the plaintiffs to file the suit for declaration and permanent injunction.

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Defendant No.2 filed a written statement on behalf of defendants No.1 to 3 admitting that Sy.No.18 measures 100 acres and it is Government land. It is denied that the house of the plaintiffs is situated in Sy.No.18. It is contended that the road passes by the side of residential house of the plaintiffs from Thirthahalli to Koppa. It is contended that the suit filed by the plaintiffs is not maintainable in view of the non-issuing of notice as required under Section 80(1) of the CPC. It is contended that the Civil Court has no jurisdiction under Sections 61, 63, 135 and 136 of the KLR Act. On these grounds, it is sought for dismissal of the suit.

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Defendant No.4 filed a written statement, and

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defendants No.5 to 10 have adopted the written statement

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filed by defendant No.4. Defendant No.4 denied the averments made in the plaint and prayed to dismiss the suit.

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The Trial Court, based on the above said pleadings, framed issues on 30.09.2006. Further, the trial Court framed two additional issues on 21.12.2006, and the additional issues were treated as preliminary issues, which are as under:

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(1) Whether the defendants No.1 to 3 prove that suit of the plaintiffs is not maintainable for non-issuing statutory notice under Section 80(1) of the CPC as contended in para-20 of the written statement?

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(2) Whether defendants No.1 to 3 prove that suit of the plaintiffs is not maintainable for the reasons stated in para-22 of the written statement?

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The trial Court, after hearing both the parties

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on preliminary issues, answered additional issue Nos.1 and 2 in the affirmative and consequently dismissed the suit of the plaintiff as not maintainable.

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The plaintiffs, aggrieved by the judgment

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passed in the above said suit, filed an appeal in

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R.A.No.31/2007. The First Appellate Court, framed the

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following points for consideration:

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(1) Whether treating the additional issue No.1 as preliminary issue and holding that the suit is not maintainable is just and proper?

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(2) Whether the Civil Court has got jurisdiction to grant the relief of declaration as sought by the plaintiffs?

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(3) Whether it is necessary to interfere with the judgment and decree passed by the trial Court?

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(4) To what order?

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The First Appellate Court, after hearing the

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learned counsel for the parties, answered point Nos.1 and 2 in negative, point No.3 partly in affirmative, and point No.4 as per the final order and consequently allowed the appeal in part and set aside the order passed by the trial Court on additional issue No.1 and confirmed the order passed on additional issue No.2 and consequently, dismissed the suit of the plaintiffs. The plaintiffs, aggrieved by the judgment and decree passed by the first Appellate Court on additional issue No.2, have filed this regular second appeal.

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This court admitted the appeal on 19.03.2010

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to consider the following substantial questions of law :

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(1) Whether the courts below are right in concluding that the order passed by the second defendant in favour of the defendants 4 to 10 is in exercise of powers under Section 67(2) of the Act when the second defendant himself in his order stated that the order passed by him is in exercise of his powers under Section 103(2) of the Act?

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(2) Whether the courts below are right in concluding that the order passed by the second defendant being in terms of Section 67(2) of the Act, the remedy was to approach the Deputy Commissioner in terms of Section 67(3) of the Act and thereafter if they are unhappy against the order made under Section 67(3) of the Act, they have to institute civil suit when in fact the second defendant passed the order in terms of Section 103(2) of the Act and that the order passed under Section 103(2) of the Act is declared as final, subject to decision in a suit under Section 103(3) of the Act?

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(3) Whether the courts below have committed grave illegality in ignoring the fact that the power under Section 103(2) of the Act was initially conferred on the Deputy Commissioner and thereafter by Act No.5/1970 the word 'Deputy Commissioner' is substituted with the word 'Tahsildar' and thereby the power of the Deputy Commissioner has been delegated to the

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Tahsildar and therefore the plaintiffs preferred Civil Revision Petition invoking the power of the Karnataka Appellate Tribunal in terms of Section 56 read with 57 of the Act and ultimately by exercising liberty reserved by this Hon'ble Court and in view of Section 103(3) of the Act they instituted the civil suit before the trial Court in the facts and circumstances of the case and in the light of the direction issued by the Hon'ble Apex Court and this Hon'ble Court and having regard to the scheme of the Karnataka Land Revenue Act?

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Heard learned counsel for the plaintiffs; learned Additional Government Advocate for respondents No.1 to 3; and learned counsel for respondents No.4 to 10.

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Learned counsel for the plaintiffs submits that the first Appellate Court has answered additional issue No.1 in negative and additional issue No.2 in affirmative, without considering Section 103(3) of the KLR Act and also the liberty reserved by this Court in the writ petition, and thereby committed an error in confirming the finding of the trial Court on additional issue No.2. Hence he submits that the impugned judgments passed by the courts below

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NC: 2024:KHC:34606 RSA No. 784 of 2009

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on additional issue No.2 are contrary to Section 103(3) of

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the KLR Act. On these grounds, prays to allow the appeal.

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Per contra, learned counsel for defendants No.4 to 10 supports the impugned judgment and submits that the suit filed by the plaintiffs is not maintainable. The trial Court, as well as first Appellate Court, were justified in answering additional issue No.2 in favour of the defendants. Hence, prays to dismiss the appeal.

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Learned Additional Government Advocate adopts the arguments of learned counsel for defendants No.4 to 10.

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Perused the records and considered the submissions of learned counsel for the parties.

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SUBSTANTIAL QUESTIONS OF LAW NO.1 TO 3 : As

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these questions are interlinked, they are taken together for common discussion to avoid repetition of facts. It is the case of the plaintiffs, the order passed by defendant No.2 dated 14.08.2000, in respect of the alleged path

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NC: 2024:KHC:34606 RSA No. 784 of 2009

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shown in Sy.No.18 in the village map, is illegal and void and without jurisdiction and not maintainable. To consider the case in hand, it is necessary to examine specific provisions of the KLR Act. Section 67 of the KLR Act reads as under:

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"67. Public roads, etc., and all lands which are not the property of others belong to the Government.-

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(1) All public roads, streets, lanes and paths, bridges, ditches, dikes and fences, on or beside the same, the bed of the sea and of harbours and creeks below high water mark and of rivers, streams, nallas, lakes and tanks and all canals and water-courses and all standing and flowing waters, and all lands wherever situated which are not the property of individuals or of aggregate of persons legally capable of holding property, and except in so far as any rights of such persons may be established, in or over the same, and except as may be otherwise provided in any law for the time being in force, are and are hereby declared to be with all rights in or over the same or appertaining thereto, the property of the State Government.

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(2) Where any property or any right in or over any property is claimed by or on behalf of the State Government or by any person as against the State Government, it shall be lawful for the Deputy Commissioner or a Survey Officer not lower in rank than a Deputy Commissioner, after formal inquiry to pass an order deciding the claim.

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(3) Any person aggrieved by an order made under sub-section (2) or in appeal or revision therefrom may institute a civil suit contesting the order within a

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period of one year from the date of such order and the final decision in the civil suit shall be binding on the parties."

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Sub-section (3) of Section 67 of the KLR Act provides that any person aggrieved by the order made under Sub-section (2) or in appeal or revision therefrom, may institute a civil suit contesting the order within one year from the date of such order and the final decision in the civil suit shall be binding on the parties.

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Admittedly in the instant case, defendant No.2 has passed an order for removal of alleged encroachment in the path way. The said order was challenged by the plaintiffs before the Karnataka State Appellate Tribunal by way of an appeal. The said order was set aside and the matter was remanded to the Tahsildar, Thirthahalli to rehear the same and pass appropriate order. The Tahsildar reiterated his earlier order relying on the village map which was about 200 years old. It was the plaintiffs' claim that such a path way was not in existence and was not in use. That order was again challenged before the

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Karnataka Appellate Tribunal. The Appellate Tribunal affirmed the order passed by the Tahsildar. This was further challenged by way of a writ petition before this Court in writ jurisdiction in W.P.No.37336/2000. The said writ petition was dismissed vide order dated 25.06.2001. The plaintiffs were directed to file a civil suit as provided under Section 103(3) of the KLR Act. Pursuant to the said liberty granted, the plaintiffs have filed a civil suit seeking declaration and consequential relief of permanent injunction. In view of the liberty granted by this Court in the said writ petition, the plaintiffs filed a suit for declaration and injunction. In the said suit, defendant No.4 filed written statement and defendants No.5 to 10 adopted the written statement filed by defendant No.4. The trial Court framed issues and additional issues, and treated the additional issues as preliminary issues and answered additional issue Nos.1 and 2 in affirmative and consequently dismissed the suit of the plaintiffs as not maintainable. The plaintiffs aggrieved by the said order, preferred an appeal before the first Appellate Court and

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the first Appellate Court after hearing the parties, set aside the finding recorded on additional issue No.1 and confirmed the finding recorded on additional issue No.2. The first Appellate Court has committed an error in confirming the finding given on additional issue No.2 and the judgment passed by the trial Court. Even the trial Court has failed to consider Sections 67 of the KLR Act, and committed an error in dismissing the suit of the plaintiffs as not maintainable. The judgments and decrees passed by the courts below are contrary to Sections 67 of KLR Act and the findings recorded by this Court in W.P.No.37336 of 2020 wherein this Court held in para No. 3 which reads as under:

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'3. In view of the submission made, the orders of 8^th and 9^th respondents are subject to the decision in civil suit. The petitioners can work out their rights before competent civil Court by instituting proper suit seeking appropriate relief'.

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As per sub-section (3) of Section 103 of the KLR Act, the powers are conferred on the Deputy

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Commissioner and not on the Tahsildhar. The powers are not delegated to Tahsildhar in sub-section 3 of section 103 on perusal of Act No.5 of 1970, the Expression "Deputy Commissioner" as mentioned is not substituted. Hence, the question of considering substantial question of law No.3 does not arise. Accordingly, I hold that the suit filed by the plaintiffs is maintainable under Sections 67(3) of the KLR Act. Hence, I answer substantial questions of law in negative.

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In view of the above discussion, I proceed to pass the following:

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ORDER

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The appeal is allowed.

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The impugned judgments are set aside. Consequently, the suit of the plaintiffs is restored.

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The trial Court is directed to dispose of the suit on merits.

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NC: 2024:KHC:34606 RSA No. 784 of 2009

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Office is directed to transmit the records

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to the trial Court.

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SD/(ASHOK S. KINAGI) JUDGE

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H C Duggappa Gowda v. State of Karnataka

Case brief

What is this about?

What did the court decide?

H C Duggappa Gowda v. State of Karnataka

Case brief

What is this about?

What did the court decide?

What the court decided

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Issues for consideration

Statutes considered

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