Dismissed

Ms S M Nanjamma v. the Tahasildar

Karnataka HC29 Oct 2024RSA/843/2013

Case brief

AI extract

What is this about?

This second appeal challenged the dismissal of a civil suit seeking declaration that there was no encroachment and negative declaration of title over ancestral agricultural properties. The appeal relied on revenue court orders finding no encroachment. The High Court dismissed the appeal, holding the suit defective for lack of boundary description in the plaint schedule and failure to array the Sta

What did the court decide?

Appellant appeal dismissed against the judgment and decree of the First Appellate Court.

Ms S M Nanjamma Vs the Tahasildar — Property and Title | Karnataka HC (2024)

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1 - NC: 2024:KHC:43684 RSA No. 843 of 2013

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 29^TH DAY OF OCTOBER, 2024

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BEFORE

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THE HON'BLE MR JUSTICE RAVI V HOSMANI REGULAR SECOND APPEAL NO. 843 OF 2013 (DEC/INJ)

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BETWEEN:

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Ms. S.M.NANJAMMA, W/O LATE SRI R PURADAPPA, AGED 69 YEARS,

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SRI K.P. UMAPATHI, S/O LATE SRI R PURADAPPA, AGED 46 YEARS,

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SRI K.P. NANDEESH, S/O LATE SRI R PURADAPPA, AGED 43 YEARS,

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ALL ARE AGRICULTURISTS, SIDDARAHALLI VILLAGE, DUGLAPURA POST, TARIKERE TALUK, CHIKKAMAGALUR DITRICT. - 571 218.

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…APPELLANTS

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[BY SRI S.R. SREEPRASAD, ADVOCATE (PH)]

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Digitally signed by ANUSHA V Location: High Court Of Karnataka

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AND:

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THE TAHASILDAR, TARIKERE TALUK, TARIKERE, CHIKKAMAGALUR DISTRICT - 571 218.

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THE REVENUE INSPECTOR, KASABA HOBLI, TALUK OFFICE, TARIKERE TALUK, CHIKKAMAGALUR DISTRICT.

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Ms. K.P. ANITHA, W/O SURESH, D/O LATE PURADAPPA, AGED 48 YEARS, SIDDARAHALLI VILLAGE,

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NC: 2024:KHC:43684 RSA No. 843 of 2013

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DUGLAPURA POST, TARIKERE TALUK, CHIKKAMAGALUR DISRICT - 571 218.

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…RESPONDENTS

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[BY SRI MILIND DANGE, AGA FOR R1 & R2 (MA NOT FILED V/O DATED 26.06.2024; R-3 SERVED]

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THIS RSA IS FILED U/S. 100 OF CPC., AGAINST THE JUDGMENT & DECREE DTD 15.1.2013 PASSED IN R.A.NO.21/2007 ON THE FILE OF THE ADDL. DISTRICT JUDGE, CHIKMAGALUR, DISMISSING THE APPEAL FILED AGAINST THE JUDGMENT AND DECREE DTD 22.2.2007 PASSED IN OS.NO.108/2005 ON THE FILE OF THE CIVIL JUDGE (SR.DN) & PRL. JMFC., TARIKERE.

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THIS APPEAL, COMING ON FOR FINAL HEARING, THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER: CORAM: HON'BLE MR JUSTICE RAVI V HOSMANI

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ORAL JUDGMENT

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Challenging judgment and decree dated 15.01.2023 passed by Addl. District Judge, Chikkamagalur, in R.A.no.21/2007 and judgment and decree dated 22.02.2007 passed by Civil Judge (Sr.Dn.) & Prl. JMFC., Tarikere, in O.S.no.108/2005, this appeal is filed.

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Brief facts as stated are that, O.S.no.108/2005 was filed by plaintiff seeking for declaration. In plaint, it was stated he was owner in possession and enjoyment of suit properties named in schedule which were ancestral properties belonging to one Maheshwarappa son of Rudrappa. In family partition, they were allotted to share of plaintiff and his name mutated in

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NC: 2024:KHC:43684 RSA No. 843 of 2013

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revenue records. It was further stated during time of Maheshwarappa, there were objections about encroachment of tank-bed area of Kammaranakatte in Sy.no.14 of Duglapura. Defendant no.1 i.e., Tahsildar, Tarikere taluk had ordered eviction from encroached area. Said order was challenged before Assistant Commissioner in R.A.no.29/87-88. Appeal was dismissed, but questioned before Deputy Commissioner, Chikkamagaluru, in RA no.24/88-89 which was allowed by remanding matter back to Assistant Commissioner with directions. Thereafter Assistant Commissioner once again dismissed appeal on 04.06.1990. Appeal before Deputy Commissioner in RA.no.6/1991 was allowed and order passed by Assistant Commissioner was set-aside.

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It was further stated that order passed by Deputy Commissioner was questioned before Revenue Appellate Authority, but dismissed on 14.05.1993. Thus, finding about there being no encroachment of government property had attained finality. It was stated that suit property consisting of areca nut and coconuts trees were aged about more than 45 years and plaintiff was enjoying fruits. It was stated there was no encroachment on Government land and properties were fenced. It was further stated that land in Sy.no.14 contained

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NC: 2024:KHC:43684 RSA No. 843 of 2013

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tank with two sluices gates and waste water channel and boundary of same was marked with trench. Under such circumstances, public auction notice issued by defendant no.1Tahsildar on 20.9.2005 for cutting and selling away of crops on alleged encroached area by plaintiff was illegal. Hence, suit for declaration was filed.

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On service of suit summons, defendants appeared and filed written statement generally denying plaint averments, but specifically admitting plaintiff's statement that when lands were standing in name of Maheshwarappa son of Rudrappa, there was some objection about khatedar in Sy.no.14 , that plaintiff had encroached tank-bed of Kumaranakatte, for which eviction notice was issued and auction was conducted on 29.09.2005, therefore suit was not maintainable.

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Based on pleadings, trial court framed following

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issues:

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1. Whether the plaintiff proves that he has not encroached any portion in Sy.No.14 of Duglapura as alleged in notification dated 20.09.2005 of the defendants?

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2. Whether the plaintiff proves that he is an lawful possession and enjoyment of the suit schedule properties?

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3. Whether the plaintiff proves the interference made by the defendants into his lawful possession and enjoyment of the suit schedule properties?

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NC: 2024:KHC:43684 RSA No. 843 of 2013

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4. To what decree or order, the parties are entitled to?

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Plaintiff examined himself and another witness as PWs

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1 and 2 and got marked ExsP1 to P.11. On rebuttal, defendant examined one witness as DW1 and got marked Exs.D1 to 4.

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On consideration, trial Court answered issues no.1 to

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3 in negative and issue no.4 by dismissing suit. Aggrieved, plaintiff filed R.A.no.21/2007 on several grounds including contentions that trial Court erred in holding that suit was bad for non-joinder of necessary parties as plaintiff arrayed tahsildar and revenue inspector as defendants. It was contended that there was improper appreciation of oral and documentary evidence as per which it was established that plaintiff was in possession of suit properties, but, nevertheless proceeded to dismiss suit.

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Based on contentions, first appellate Court framed

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following points for consideration:

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1. Whether the appellants have made out valid grounds to set aside the judgment and decree passed in O.S.108/2005 dated 22.02.2007 on the file of Civil Judge (Sr.Dn.), Tarikere?

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2. Whether the appellants made out a valid grounds to interfere with the findings given by the trial court?

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3. What Order?

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NC: 2024:KHC:43684 RSA No. 843 of 2013

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Answering same in negative, first appellate Court dismissed appeal. Aggrieved, plaintiff is in second appeal.

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Sri.S.R.Sreeprasad, learned counsel for appellants sought to contend that Ex.P.9-order passed by Deputy Commissioner, Chikkamagaluru, held order passed by Assistant Commissioner and tahsildar for eviction of plaintiff from suit property on ground of encroachment was illegal. Said order had attained finality. Therefore, subsequent steps by defendant no.1 for auction of right to harvest crops in Sy.no.14 would be illegal and plaintiff was entitled for declaration.

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It was further submitted, very fact that defendants were alleging encroachment of land in Sy.no.14 by plaintiff would establish that plaintiff was in possession and when said fact is considered in light of order passed by Deputy Commissioner at Ex.P.9, finding that plaintiff's possession was not lawful would be contrary to material on record. In view of above, learned counsel sought for answering substantial question of law framed for consideration in favour of appellant and to allow appeal.

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On other hand, Sri Milind Dange, learned AGA appearing for respondents/defendants sought to oppose appeal. It was submitted suit filed by plaintiff seeking negative

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NC: 2024:KHC:43684 RSA No. 843 of 2013

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declaration, would not be tenable. It is submitted that both Courts dismissed suit mainly on said ground. It was further submitted land in Sy.no.14 belonging to Government and suit is filed arraying only tahsildar and revenue inspector as defendants would be untenable. Said ground was also concurrent in instant case, therefore submitted that no substantial question of law would arise for consideration and sought for dismissal of appeal.

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Appeal was admitted on 09.04.2019 to consider

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following substantial questions of law:

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1. Whether the Courts below are justified in dismissing the suit of the appellants inspite of the fact that the appellants have proved their possession and enjoyment over the plaint suit schedule properties in O.S.No.105/2005?

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2. Whether the Courts below are justified in dismissing the suit of the appellants contrary to the unchallenged findings of the Revenue Courts?

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Heard learned counsel, perused impugned judgment

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and decree and records.

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From above, it is seen that plaintiff's grievance is against order passed by tahsildar on 20.09.2005 granting right to harvest crops from encroached portion in Sy.No.14 of Dugalpura village. Though plaintiff has made averments against

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NC: 2024:KHC:43684 RSA No. 843 of 2013

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said order by and seeking relief insofar as land in Sy.no.14, 'suit schedule' does not include said property. Consequently, there is absence of boundary description of property with regard to which relief is sought.

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It is also settled legal position that when positive action of defendants-State/statutory body is questioned, plaintiff ought to have seek for declaration against such action. Though auction is alleged to be illegal, no prayer is sought against it. On other hand, plaintiff sought for negative declaration that there was no encroachment. Even second relief namely permanent injunction sought cannot be considered in absence of prayer for declaration against action taken against plaintiff by defendants. Therefore, suit as filed, appears to be defective and untenable.

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On perusal of judgment and decree passed by trial Court, it is seen, trial Court precisely on said grounds answered issues against plaintiffs and dismissed suit. Said findings are uphold by first appellate Court. In addition, it is seen that first appellate Court observed that when action was taken by government authorities, suit would not be tenable without arraying Government of Karnataka as party to proceedings. It is held by Hon'ble Supreme Court, in Chamanlala v. State of

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NC: 2024:KHC:43684 RSA No. 843 of 2013

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Punjab, reported in 2014(15) SCC 715, petition seeking relief against government without arraying State Government represented by its Secretary, would not be maintainable.

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In view of above, judgment and decree passed by both Courts cannot be faulted. However, in view of pleadings wherein defendants have alleged plaintiff has encroached on government land bearing Sy.no.14, regardless of dismissal of present suit, defendants-State can take action against plaintiff for eviction only in accordance with law. Substantial question of law no.1 is answered accordingly.

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In view of fact that land in question namely Sy.no.14 is not included in schedule and described, substantial question of law no.2 would not arise for consideration. Consequently, following:

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ORDER

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Appeal is dismissed. No order as to costs.

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Sd/(RAVI V HOSMANI) JUDGE

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Psg*

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List No.: 1 Sl No.: 53

Ms S M Nanjamma v. the Tahasildar

Case brief

What is this about?

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Ms S M Nanjamma v. the Tahasildar

Case brief

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