Smt.Eshwaramma W/O Gadilingpapa Vs Smt.Kurubara Mangamma W/O Alte Gundappa

THIS RFA IS FILED UNDER SECTION 96 OF CPC., PRAYING TO SET ASIDE THE JUDGMENT AND DECREE DATED 19.01.2019 PASSED BY THE COURT OF II ADDITIONAL SENIOR CIVIL JUDGE, BALLARI, SITTING AT SIRUGUPPA IN O.S.NO.263/2012 AND ALLOW THIS APPEAL, IN THE INTEREST OF JUSTICE.

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IN RFA NO. 100341 OF 2019

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BETWEEN:

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SMT. ESHWARAMMA, W/O. GADILINGAPPA, AGE: 57 YEARS, OCC: AGRICULTURIST, R/O: TALUR VILLAGE, TQ: SIRUGUPPA, DIST: BALLARI-583121.

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SRI. CHELUVADI SUNKAPPA S/O. LATE DODDA HUCHAPPA, AGE: 57 YEARS, OCC: AGRICULTURIST,

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R/O: TALUR VILLAGE, TQ: SIRUGUPPA, DIST: BALLARI-583121.

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SRI. CHELUVADI DURGANNA, S/O. LATE DODDA HUCHAPPA, AGE: 52 YEARS, OCC: AGRICULTURIST, R/O: TALUR VILLAGE, TQ: SIRUGUPPA, DIST: BALLARI-583121.

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…APPELLANTS

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(BY SRI. ANIL KALE, ADVOCATE)

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AND:

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SMT. KURUBARA MANGAMMA W/O. LATE GUNDAPPA, AGE: 67 YEARS, OCC: AGRICULTURIST, R/O. ULURU VILALGE, TAL: SIRUGUPPA DIST: BALLARI-583121.

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SRI. BASAPPA, S/O. LATE GUNDAPPA, AGE: 42 YEARS, OCC: AGRICULTURIST, R/O. ULURU VILALGE, TAL: SIRUGUPPA DIST: BALLARI-583121.

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…RESPONDENTS

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(BY SRI. MALLIKARJUNSWAMY B. HIREMATH, ADVOCATE FOR R1 & R2)

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THIS RFA IS FILED UNDER SECTION 96 OF CPC., PRAYING TO SET ASIDE THE JUDGMENT AND DECREE DATED 19.01.2019 PASSED BY THE COURT OF II ADDITIONAL SENIOR CIVIL JUDGE, BALLARI, SITTING AT SIRUGUPPA IN O.S.NO.261/2012 AND ALLOW THIS APPEAL, IN THE INTEREST OF JUSTICE.

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THESE APPEALS COMING ON FOR ORDERS THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER:

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CORAM: THE HON'BLE MR. JUSTICE S.R. KRISHNA KUMAR AND

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THE HON'BLE MR. JUSTICE C.M. POONACHA

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ORAL JUDGMENT

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(PER: THE HON'BLE MR. JUSTICE S.R. KRISHNA KUMAR)

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The appeal in RFA No.100342/2019 is directed against the impugned judgment and decree in O.S.No.263/2012 and the appeal in RFA No. 100341/2019 is directed against the impugned judgment and decree in O.S.No.261/2012 both dated 19.01.2019 passed by the II-Additional Senior Civil Judge, Ballari, sitting at Siruguppa¹ .

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It is a matter of record that the appellants in both the appeals are one and the same and they are the defendants in both the suits. It is also an undisputed fact that the respondent in RFA No.100342/2019 is one Lingareddy, who is the plaintiff in O.S.No.263/2019 and the wife and son of his deceased brotherGundappa, who are the plaintiffs in O.S.No.261/2012 are the respondents in RFA No.100341/2019. Since common questions

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1 Hereinafter referred to as ‘the Trial Court’

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of law and fact arise for consideration in both the appeals, they are taken up for consideration together and disposed of by this common judgment.

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Briefly stated, the facts giving rise to both the appeals are as under:

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(a) As stated supra, the plaintiff in O.S.No.263/2012 is one Lingareddy, who had a brother, late Gundappa, whose wife and son are the plaintiffs in O.S.No.261/2012. The plaintiffs filed the above suits for declaration that they are the absolute owners of the suit schedule immovable properties so also for permanent injunction and other reliefs. The suit schedule property in O.S.No.263/2012 is land bearing Survey No.90/A measuring 9 acres 60 cents situated at Uluru Village, Karuru Hobali, Siruguppa Taluk, Ballari District. Similarly, the suit schedule property involved in O.S.No.261/2012 is also a land bearing Survey No.90/A/a measuring 9 acres 57 cents also situated at Uluru village, Karuru Hobli, Siruguppa Taluk, Ballari District. It is contended that the suit schedule properties involved in both the suits totally measuring 19 acres 17 cents were originally purchased by Lingareddy vide registered sale deed dated

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30.06.1980 executed in his favour by Dodda Huchappa and Eramma. It is contended that the lands involved in both the suits were Inam lands, which stood vested with the State Government under The Karnataka Certain Inams Abolition Act, 1977² pursuant to which Lingareddy applied for re-grant of occupancy rights, which were granted in his favour vide order dated 04.08.1987 by the Tahsildar. It is contended that pursuant to the aforesaid re-grant of the suit schedule properties measuring 19 Acres 17 cents, the Khata was mutated into the name of Lingareddy and he started paying taxes in respect of the suit schedule properties.

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(b) The plaintiffs also specifically contended that Lingareddy had a brother, Gundappa, whose wife and son are the plaintiffs in O.S.No.261/2012. At a family partition between Lingareddy and the wife and son of late Gundappa and their sisters, the suit schedule properties measuring total extent of 19 acres 17 cents were partitioned and divided by allotting the 9 acres 60 cents in favour of Lingareddy and the remaining 9 acres 57 cents was allotted in favour of Gundappa's wife and son i.e., Mangamma and Basappa, who are the plaintiffs in

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2 Hereinafter referred to as “the Act of 1977”

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O.S.No.261/2012. It was further contended that pursuant to the aforesaid family partition between the Lingareddy and the Mangamma and Basappa, the wife and son of Gundappa, who are the plaintiffs in O.S.No.261/2012, the suit schedule properties, involved in both the suits, were allotted to the share of the said persons in whose name the Katha was mutated and the revenue records continued to stand in their name and they were paying taxes.

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(c) It is further contended by the plaintiffs that the defendant No.1 is the wife of Gadilingappa and defendant Nos.2 and 3 are the daughters of late Dodda Huchappa, who was the brother of Gadilingappa and that it was Eramma and Dodda Huchappa, who had sold the suit schedule properties in favour of Lingareddy vide registered sale deed dated 30.06.1980 referred to above. It was contended that having sold the suit schedule properties in favour of Lingareddy vide registered sale deed dated 30.06.1980, the aforesaid Dodda Huchappa and Gadilingappa and their successors in title, including the defendants, ceased to have any manner of right, title, interest or possession over the suit schedule properties and since they

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interfered with the plaintiffs’ possession and enjoyment of the suit schedule properties, the plaintiffs filed the instant suits for declaration of permanent injunction and other reliefs.

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(d) The defendants entered appearance and disputed and

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denied the various allegations and claims made by the plaintiffs in the plaints. It was contended that the revenue proceedings under which the Khata was mutated into the name of the plaintiffs have been challenged by the defendants before the Assistant Commissioner, who has granted stay in respect of the revenue records in relation to the suit schedule properties. That the suit was bad for non-joinder of necessary and proper parties and that the plaintiffs are not in possession of the suit lands and they are not entitled to seek declaration and injunction in relation to the suit schedule properties. That the suit schedule properties were purchased by Dodda Huchappa and Eramma vide registered sale deed dated 14.06.1949 and upon the suit schedule property having vested with the State Government under the Act of 1977, with effect from 05.06.1978, Dodda Huchappa and Eramma did not have any right to execute the alleged sale deed dated 30.06.1980 in favour of Lingareddy and

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the said sale deed is null and void and did not confer any right over the suit schedule properties in favour of Lingareddy. That the alleged re-grant of the suit schedule properties in favour of Lingareddy was null and void since he was neither in possession nor had any right over the suit schedule properties. That the Civil Court does not have jurisdiction to entertain and adjudicate upon the instant suits relating to the Inam land under the Act of 1977, as the re-grant made in favour of the aforesaid Lingareddy was under challenge before the competent authority and the same was pending adjudication. The defendants put forth other contentions regarding revenue proceedings as well as criminal proceedings between the parties and contended that they are in possession and enjoyment of the suit schedule properties and that both the suits were liable to be dismissed.

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Based on the aforesaid pleadings the Trial Court

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framed the following issues:

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In O.S.No.261/2012

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1. Whether the plaintiffs prove that they are the absolute owners of the suit schedule property?

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2. Whether the plaintiffs prove that they are in lawful possession of the suit schedule properties?

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3. Whether the defendants prove that the Civil Court has no jurisdiction to try the suit as a subject matter of suit is Inam lands?

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4. Whether the defendants prove that the suit is not maintainable without seeking the relief of possession?

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5. Whether defendants prove that the suit is bad for non joinder of necessary parties?

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6. Whether the plaintiffs prove the alleged interference by the defendants

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7. Whether the plaintiffs are entitle to the relief claimed in the suit ?

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8. Whether order or decree ?”

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In O.S.NO.263/2012

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“1. Whether the plaintiffs proves that they are the absolute owners over the suit schedule property?

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2. Whether the plaintiffs prove that they are in lawful possession of the suit schedule properties?

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3. Whether defendants prove that the Civil Court has no jurisdiction to try the suit as a subject matter of suit is inam lands?

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4. Whether the defendants prove that the suit is not maintainable without seeking the relief of possession?

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5. Whether defendants prove that the suit is bad for non joinder of necessary parties?

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6. Whether the plaintiffs prove the alleged interference by the defendants?

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7. Whether the plaintiffs are entitle to the relief claimed in the suit?

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8. Whether order or decree?

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In O.S.No.263/2012, the plaintiff examined himself

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as PW1 and the documentary evidence at Exs.P1 to P47 were marked, while the GPA holder of defendant No.1 was examined himself as DW1 and documentary evidence at Exs.D1 to D8 were marked. Similarly, in O.S.No.261/2012, the plaintiff No.2 examined himself as PW1 and Exs.P1 to P.33 were marked, while the GPA holder of defendant No.1 was examined himself as DW1 and documentary evidence at Exs.D1 to D22 were marked on their behalf.

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After hearing the parties, the Trial Court proceeded

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to pass the impugned judgments and decrees decreeing both the suits in favour of the respondents/plaintiffs, aggrieved by which

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the appellants/defendants are before this Court by way of the present appeals.

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The learned counsel for the appellants would assail the impugned judgments and decrees passed by the Trial Court and contend that upon the suit schedule properties vesting absolutely in the State Government under the Act of 1977, with effect from 05.07.1978, the purchaser Lingareddy, who claims to have purchased the properties from the inamdar, cannot claim any right over the suit schedule properties since the vendors did not have any saleable/alienable right over the suit schedule properties. It was further contended that though the re-grant order dated 25.07.1987 passed in favour of the Lingareddy was asserted, except producing Form No.2 vide Ex.P25/Ex.D8, the order of re-grant said to be dated 25.07.1987 had not been produced by the respondents and at any rate, since the alleged grantee, Lingareddy, was neither an inamdar nor a tenant as contemplated under Section 5 of the Act of 1977, the alleged regrant in his favour was non-est, void and contrary to the provisions of the Act of 1977 and no right, title, interest or possession had been acquired by Lingareddy under the Act of

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1977 and it was only the Land Tribunal, who had jurisdiction to entertain and adjudicate upon the claim of re-grant and the alleged re-grant in favour of Lingareddy by the Tahsildar is invalid and illegal in view of Section 11 of the Act of 1977.

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Lastly, it was contended that before the Tahsildar issued Form No.2 in favour of Lingareddy, no notice or enquiry was conducted by him and the procedure contemplated under Rules 4-A and 5 of the Karnataka Certain Inams Abolition Rules, 1979³ had not been followed, which is yet another circumstance, which would militate against the claim for title put forth by the plaintiffs. It was submitted that under these circumstances, the impugned judgments and decrees passed by the Trial Court deserve to be set aside and the suits of the plaintiffs were liable to be dismissed.

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Per contra, learned counsel for the

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respondents/plaintiffs in addition to supporting the impugned judgments and decrees passed by the Trial Court invited our attention to Ex.P25/D8 in order to point out that the fresh issuance of Form No.2 in favour of Lingareddy would clearly

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3 Hereinafter referred to as the “Rules of 1979”

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indicate that occupancy rights had been re-granted in favour of Lingareddy and so long as the said re-grant order was not challenged and set aside in the manner known to law, the same had attained finality and become conclusive and binding against the whole world including the defendants, who had undisputedly

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lost their right, title, interest and possession over the suit schedule properties by virtue of the land having stood vested with the State Government with effect from 05.07.1978. It was also contended that though Section 11 of the Act of 1977 provides for the Land Tribunal to consider a claim for re-grant of occupancy rights, the proviso to Section 11 of the Act of 1977 clearly indicates that insofar as enfranchised Inams were concerned, it was the Tahsildar, who had jurisdiction and correctly re-granted the suit schedule properties in favour of Lingareddy, which can be clearly inferred from Form No.2 vide Ex.P25/D8 confirming the re-grant in favour of Lingareddy on 25.07.1987 and the jurisdiction of the Civil Court was impliedly barred to adjudicate upon the legality, validity or correctness of a grant made under the Act of 1977, which had attained finality and become conclusive and binding upon and against the entire world including the defendants. It was submitted that the

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defendants did not have any possession/possessory title over the suit schedule properties and having put the plaintiffs in possession and enjoyment of the suit schedule properties, vide registered sale deed dated 30.06.1980, pursuant to which the Khata was mutated into the name of Lingareddy, the plaintiffs were entitled to be declared as the absolute owners in possession and enjoyment of the suit schedule properties as against the defendants, who did not have any right over the said properties. It was also contended that the Civil Court did not have jurisdiction to go behind/beyond the order of re-grant made in favour of Lingareddy and it was permissible for the Trial Court to grant a decree for declaration and possession based on a regrant order and the impugned judgments and decrees passed by the Trial Court does not warrant interference by this Court in the present appeals.

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Having heard learned counsel for the appellants and learned counsel for the respondents and perused the materials on record, the following points arise for consideration in both the appeals:

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(i) Whether the Trial Court was justified in coming to the conclusion that the plaintiffs were the absolute owners in lawful and peaceful possession and enjoyment of the suit schedule properties?

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(ii) Whether the impugned judgments and decrees passed by the Trial Court warrant interference in the present appeals?

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i) Whether the Trial Court was justified in decreeing the suit for declaration and permanent injunction filed by the plaintiffs against the defendants?

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ii) Whether the impugned judgments and decrees passed by the trial Court warrants interference in the present appeals?

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Re. Points No.i) and ii)

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Points No.i) and ii) are interlinked and hence, they are taken up together for consideration.

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A perusal of the material on record will indicate that it is an undisputed fact that the suit schedule property originally belonged to the family of Dodda Huchappa and Eeramma, who had acquired the suit schedule properties vide registered sale deed dated 14.06.1949. It is also an undisputed fact that the

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said Act of 1977 came into force with effect from 05.07.1978, pursuant to which the suit schedule properties stood vested absolutely in the State Government free from all encumbrances. It is contended by the plaintiffs that they purchased the suit schedule properties from Eramma and Dodda Huchappa vide registered sale deed dated 30.06.1980. In this context, it is apposite to refer to the relevant provisions of the Act of 1977. Section 5 of the said Act of 1977 reads as under:

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“5. Right to be registered as occupants. - Save as otherwise provided in this Act, with effect from and on the appointed date,-

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(1) every tenant of the inamdar or holder of a minor inam shall be entitled to be registered as an occupant of lands in respect of which he was a tenant immediately before first day of March, 1974;

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(2) where the inamdar is an institution of religious worship, a person,-

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(i) rendering religious service in or maintaining the institution as a pujari, archak or the holder of a similar office by whatever name called, or

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(ii) rendering any service in such institution, and personally cultivating for a continuous period of not less than three years prior to the first day of March, 1974, by contributing his own physical

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labour or that of the members of his family and enjoying the benefits of any land comprised in the inam of such institution without paying rent as such in money or in kind to that institution in respect of such land, shall be entitled to be registered as an occupant of such land;

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(3) every inamdar including the holder of a minor inam shall be entitled to be registered as an occupant of all lands it was personally cultivating immediately before the said date.

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The material on record indicates that subsequent to the suit schedule properties standing vested to the Government and the same having been sold by Eramma and Dodda Huchappa in favour of Lingareddy, the said Lingareddy applied for regrant of occupancy rights by filing an appropriate application before the Tahsildar under Section 5, in terms of the proviso to Section 11 of the said Act of 1977, which reads as under:

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“ 11. Procedure for registration as an occupant. -

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(1) Every person entitled to be registered as an occupant under this Act shall make an application to the Tribunal constituted under the Karnataka Land Reforms Act, 1961 on or before 31st day of March, 1991. Such application shall be disposed of by the Tribunal as if it is an application made under the said Act:

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Provided the where the inam is an enfranchised inam, such application by the inamdar including holder of minor inam shall be made to the Tahsildar on or before the thirty-first day of March, 1991. The application shall be decided by the Tahsildar after issuing individual notices to the concerned inamdars and after such verification and enquiry held in such manner as may be prescribed.”

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As can be seen from the proviso to Section 11 of the said Act of 1977, the aforesaid Lingareddy filed the application in relation to the suit schedule properties which are enfranchised imams and sought for registration of occupancy rights in his favour. In pursuance of the said application filed by Lingareddy, the suit schedule properties were regranted in favour of Lingareddy which is evidenced by Form No.2 issued vide Ex.P.25/Ex.D.8 dated 04.08.1997 which confirms that the suit schedule properties were regranted in favour of Lingareddy on 25.07.1987. A perusal of the aforesaid Form No.2 issued by the Tahsidlar in favour of Lingareddy pursuant to the application filed by him in Form 1-A will indicate that the same has been issued in terms of Rule 4-A of the Rules of 1979. The aforesaid Rules 4 and 4A read as under:

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4. Application for registration of occupancy

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rights. - The application under Section 11 shall be in Form I, every application shall be restricted to a single inam. Where the application is made by any person other than the inamdar the inamadar shall be made a respondent to the application. If the application is made by the inamdar the Tahsildar shall be made a respondent in such application.

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4-A. Application for grant by holders of

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enfranchised inam lands. - (1) An inamdar including the holder of a minor inam entitled to the grant of enfranchised inam land shall make an application to the Tahsildar for such grant in Form 1-A;

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(2) On receipt of the application under subrule (1), the Tahsildar may call upon the applicant to furnish any further particulars that may be required within such time as he may allow for the purpose;

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(3) The Tahsildar shall ascertain from the Tribunal whether any applications have been made or declaration filed in respect of the same land or any portion thereof by any person other than the Inamdar claiming the registration of occupancy rights and if so the results thereof, and whether the order of the Tribunal, if any, on such application has become final. The Tahsildar shall also ascertain the

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names and addresses of the parties in all such applications filed before the Tribunal;

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(4) On receipt of the particulars referred to in sub-rules (2) and (3), the Tahsildar shall fix a date for hearing, notice of which shall be given to the applicant and to all other interested persons mentioned in the applications, and also the parties in the applications, if any, filed before the Tribunal in respect of the same land;

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(5) The notice under sub-rule (4) shall be served in the manner prescribed for service of notices under the Karnataka Land Revenue Act, 1964;

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(6) On the date fixed for hearing or such other date to which the case may be adjourned, the Tahsildar shall after holding an inquiry in the manner prescribed for a formal inquiry under the Karnataka Land Revenue Act, 1964 may, if satisfied that the applicant is entitled, grant such land to the appellant:

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Provided that where the particulars referred to in sub-rules (2) and (3) disclose that an application or declaration for registration of occupancy rights by any person other than the inamdar is pending before the Tribunal in respect of the same land or any

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portion thereof, the Tahsildar shall hold the inquiry only after such application or declaration is finally disposed of:

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Provided further that the Tahsildar shall not grant to the Inamdar any land for which the right of occupancy has been conferred on any person other than the Inamdar by the Tribunal.

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(7) Every decision or order under sub-rule (6) shall contain a full statement of the grounds on which it is made and shall be written and signed by the Officer, in which case a certificate to that effect shall be made and signed by such Officer in his own hand.

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As is clear from the provisions contained in Sections 5 and 11 of the said Act of 1977 and Rule 4 and 4A of the Rules, an application for regrant of occupancy rights by a person in relation to enfranchised inams would necessarily have to be made before the Tahasildar in terms of the proviso to Section 11, by filing an application by invoking Rule 4A of the said Rules of 1979.

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As stated earlier, the aforesaid Lingareddy having filed such an application in Form 1-A under Rule 4A of the Rules,

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the occupancy rights were regranted in his favour in Form No. 2 which is produced and marked as Ex.P.25/Ex.D.8 by the plaintiffs. It is therefore clear that by virtue of the provisions contained in Section 5, proviso to Section 11, Rules 4 and 4A of the said Rules of 1979, the suit schedule properties were regranted in favour of Lingareddy, who became entitled to the suit schedule properties as a grantee to the exclusion of everyone else including the defendants.

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It is also an undisputed fact that the said regrant order referred to in Form No.2 conferring occupancy rights in favour of the Lingareddy had attained finality and become conclusive and binding upon and against the whole world including the defendants. Though the defendants had taken up a plea in their written statement that the said regrant had not reached finality and was pending adjudication before the authorities, there is absolutely no material placed on record by the defendants to establish that the said order had been challenged before a higher forum/authority or that it had been modified or varied subsequently. Under these circumstances, having regard to the regrant of the suit schedule properties in

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favour of Lingareddy, Form No. 2 was issued by the Tahasildar in terms of Section 5 and proviso to Section 11 of the said Act of 1977 and Rules 4 and 4A of the said Rules of 1979, the regrant in favour of Lingareddy on 05.08.1987 stands confirmed and the Trial Court was fully justified in coming to the conclusion that Lingareddy had become the absolute owner in lawful and peaceful possession and enjoyment of the suit schedule property by virtue of the said regrant.

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The appellants contend that though the plaintiffs had produced Form No.2, the re-grant certificate issued in favour of Lingareddy, had not produced the original re-grant order and hence it cannot be said that the suit schedule properties were regranted in favour of Lingareddy. The said contention cannot be accepted inasmuch as a perusal of Form No.2 (Ex.P.25) clearly indicates that the regrant in favour of Lingareddy on 25.07.1987 by issuance of the said certificate dated 04.08.1987 referring to the entire suit schedule properties measuring the total extent of 19 acres 17 cents in the Survey No.90/A after following due procedure. It is, therefore, clear that mere non-production of the original regrant, in the absence of any other material placed by

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the defendants/appellants to impeach or discredit the veracity of Form No.2 issued in favour of Lingareddy, cannot be made the basis to reject the claim of the plaintiffs as is clear from the issuance of Form No.2 which had attained finality and become conclusive and binding upon the parties. Under these circumstances, this contention urged on behalf of the appellants cannot be accepted.

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The appellants also contend that alleged regrant in favour of Lingareddy was contrary to the provisions of the Act of 1977 and no title or possession can be claimed on the basis of the said re-grant order. In this context, it is pertinent to note that in the case of Stumpp Scheule & Somappa (P) Ltd –vsChandrappa⁴ , a Division Bench of this Court has held that as under:

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“23. The Inams Abolition Act is a special enactment. The question as to what extent the jurisdiction of the Civil Court is taken away with respect to matters entrusted to Tribunal constituted under the special enactment has been the subject-matter of a number of decisions. There are several tests to be applied for determining the exclusion of jurisdiction of the Civil Court. In Dhulabhai v. State of Madhya Pradesh [AIR

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4 ILR 1985 KAR 3872

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1979 SC 78.] , the Supreme Court has indicated some of the principles. One of the principles stated therein, which is relevant for our case is:

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“Where the statute gives a finality to the orders of the special tribunals the Civil Courts' jurisdiction must be held to be excluded if there is adequate remedy to do what the Civil Court would normally do in a suit. Such provision, however, does not exclude those cases where the provisions of the particular Act have not been complied with or the statutory tribunal has not acted in conformity with the fundamental principles of judicial procedure.”

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In the case on hand there is no grievance from the parties that the provisions of the Inams Abolition Act have not been complied with by the Special Deputy Commissioner while granting occupancy rights. Nor there is any complaint as to the violation of fundamental principles of judicial procedure. The only question to be considered is whether the Inams Abolition Act attaches finality to the orders of the Special Deputy Commissioner, and if so, what would be the effect of such finality on the general jurisdiction of Civil Court.

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24. To consider this part of the question, we may briefly refer to the relevant provisions of the Inams Abolition Act. …………………

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To sum up: After the inams were abolished and the lands vested in the State Government, the only right preserved to the parties is to apply for registration of occupancy rights either as ‘Kadim’ tenant, permanent tenant or other tenants recognised under the law. When such applications are made, the Special Deputy

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Commissioner, who is the statutory authority constituted under the Inams Abolition Act, is required to make an enquiry and grant relief. His order is appealable under Section 28 to the Karnataka Revenue Appellate Tribunal and the decision of the Tribunal becomes final. Section 31(3) states that no order passed by the Deputy Commissioner or Tribunal shall be liable to be cancelled or modified except by the High Court under Section 31. The jurisdiction of the High Court under Section 31 is, however, limited and confined only to orders determining compensation except those referred to in Section 28.

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25. It is thus seen that the Inams Abolition Act attaches finality to the orders granting registration of occupancy rights. What does it mean? Is it not an implied exclusion of the jurisdiction of Civil Courts? Is not the Inams Abolition Act a complete Code by itself? Does it not provide machinery for adjudicating the rights of parties with Appellate forum to correct the errors of the adjudicating authority? If that is so, could Civil Courts still exercise general jurisdiction over the same dispute. Had the Legislature intended to provide dual remedies to parties or intended to establish two authorities to determine the same question? We think not. The grant of occupancy right as ‘Kadim’ tenant, permanent tenant or any other tenant is within the exclusive jurisdiction of the special authority constituted under the Inams Abolition Act which is a special enactment. Its order is appealable to the prescribed

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authority and it then becomes final. It is, therefore, legitimate to infer that by reason of the provisions of Section 28 read with Section 31(3) of the Inams Abolition Act, the adjudication as to registration of occupancy right in respect of the land which immediately before the date of vesting was properly included in the holding of the applicant becomes final and conclusive. The Civil Court has no jurisdiction to reopen that matter. ”

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(emphasis supplied)

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As can be seen from the aforesaid judgment of this Court, once an order of regrant under the provisions of the Karnataka Certain Inams Abolition Act attains finality, the Civil Court does not have jurisdiction to go behind/beyond the said regrant order and the jurisdiction of the Civil Court is impliedly ousted and it is not open for the Civil Court to re-examine/revisit/review the said order. The said judgment also makes it clear that, while the jurisdiction of the Civil Court to review/revisit an order of regrant is ousted impliedly and is barred, the Civil Court would continue to have jurisdiction to pass a decree for declaration, injunction, etc., based on the order of regrant. Under these circumstances, so long as the said regrant in favour of Lingareddy had attained finality and become

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conclusive and binding upon and against the whole world including the defendants, it is not open for the defendants to contend that the said re-grant order was invalid or illegal and as such the said contention urged on behalf of the appellants cannot be accepted.

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It is trite law that any order, judgment, decree, etc. passed by a competent Court or Tribunal can never be said to be null, void, invalid, etc., or incapable of legal consequences since the same does not bear any brand of invalidity on its forehead. It is absolutely essential and incumbent upon a party claiming that any order is invalid, to establish the cause of invalidity and take necessary proceedings to get it quashed or otherwise upset, failing which the said order, judgment or decree shall remain as effective for its ostensible purpose as the most impeccable for its orders. Under identical circumstances, in the case of State of Punjab and Others Vs. Gurdev Singh⁵ , the Apex Court has held as under:

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“8. But nonetheless the impugned dismissal order has at least a de facto operation unless and until it is declared to be void or nullity by a competent body or

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5 (1991)4 SCC 1

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court. In Smith v. East Elloe Rural District Council [1956 AC 736, 769 : (1956) 1 All ER 855, 871] Lord Radcliffe

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observed: (All ER p. 871)

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“An order, even if not made in good faith, is still an act capable of legal consequences. It bears no brand of invalidity on its forehead. Unless the necessary proceedings are taken at law to establish the cause of invalidity and to get it quashed or otherwise upset, it will remain as effective for its ostensible purpose as the most impeccable of orders.”

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9. Apropos to this principle, Prof. Wade states [ See Wade: Administrative Law, 6th edn., p. 352] : “the principle must be equally true even where the ‘brand’ of invalidity” is plainly visible; for there also the order can effectively be resisted in law only by obtaining the decision of the court. Prof. Wade sums up these principles: [ Ibid.]

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“The truth of the matter is that the court will invalidate an order only if the right remedy is sought by the right person in the right proceedings and circumstances. The order may be hypothetically a nullity, but the court may refuse to quash it because of the plaintiff's lack of standing, because he does not deserve a discretionary remedy, because he has waived his rights, or for some other legal reason. In any such case the ‘void’ order remains effective and is, in reality, valid. It follows that an order may be void for one purpose and valid for another; and that it may be void against one person but valid against another.”

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10. It will be clear from these principles, the party aggrieved by the invalidity of the order has to approach the court for relief of declaration that the order against

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him is inoperative and not binding upon him. He must approach the court within the prescribed period of limitation. If the statutory time limit expires the court cannot give the declaration sought for. ”

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(emphasis supplied)

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22. Subsequently, the Apex Court in the case of Vivek M.

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Hinduja and Others Vs. M.Ashwataha and Others⁶ , has held as

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under:

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“8. It was also submitted on behalf of the respondents that Section 4 of the Karnataka Act proprio vigore annuls a transfer made in contravention of itself. Therefore, it makes no difference if the proceedings are initiated even after 20 to 25 years.

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9. We do not find it possible to accede to this submission. This Court in Port of Kandla v. Hargovind Jasraj [Port of Kandla v. Hargovind Jasraj, (2013) 3 SCC 182 : (2013) 2 SCC (Civ) 1] reiterated the necessity of an order of a competent court or tribunal before which the impugned order can be declared as null and void. The Court relied on the oft-quoted passage in Smith v. East Elloe RDC [Smith v. East Elloe RDC, 1956 AC 736 : (1956) 2 WLR 888 : (1956) 1 All ER 855 (HL)] which reads as under: (Hargovind case [Port of Kandla v. Hargovind Jasraj, (2013) 3 SCC 182 : (2013) 2 SCC (Civ) 1] , SCC p. 193, para 27)

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6 (2020)14 SCC 228

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“27. … ‘… An order, even if not made in good faith, is still an act capable of legal consequences. It bears no brand of invalidity on its forehead. Unless the necessary proceedings are taken at law to establish the cause of invalidity and to get it quashed or otherwise upset, it will remain as effective for its ostensible purpose as the most impeccable of orders.’ (Smith case [Smith v. East Elloe RDC, 1956 AC 736 : (1956) 2 WLR 888 : (1956) 1 All ER 855 (HL)] , AC pp. 769-70)

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This must be equally true even where the brand of invalidity is plainly visible: for there also the order can effectively be resisted in law only by obtaining the decision of the court. The necessity of recourse to the court has been pointed out (sic) repeatedly in the House of Lords and Privy Council without distinction between patent and latent defects (Eds. Wade and Forsyth in Administrative Law, 7th Edn., 1994).”

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10. In Pune Municipal Corpn. v. State of Maharashtra [Pune Municipal Corpn. v. State of Maharashtra, (2007) 5 SCC 211] this Court reproduced the following observations with regard to the declaration of orders beyond the period of limitation as invalid: (SCC p. 226, para 39)

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“39. Setting aside the decree passed by all the courts and referring to several cases, this Court held that if the party aggrieved by invalidity of the order intends to approach the court for declaration that the order against him was inoperative, he must come before the court within the period prescribed by limitation. ‘If the statutory time of limitation expires, the court cannot give the declaration sought for’.”

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(emphasis supplied)

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Interestingly, in Vivek M.Hinduja case (supra), the Apex Court has set forth a dual requirement to test a contention put forth by a party questioning the validity of any order, judgment or decree; firstly, the said order should be challenged and upset and set aside in a manner known to law; and secondly, the said challenge should be instituted within reasonable time.

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In the instant case, as stated earlier, apart from the fact that the regrant order had attained finality and had not been questioned or set aside or modified or varied in any subsequent proceedings (though such a plea was taken by the defendants in their written statement), the said regrant order having attained finality and become conclusive and binding upon the appellants, in the absence of the same being set aside, the contention of the appellants that the said regrant order is invalid cannot be accepted.

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The appellants also contend that upon vesting of the suit schedule properties in the Government, the sale deed executed in favour of Lingareddy was null and void since Doddahucchappa and Eramma did not have any

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saleable/alienable right over the suit schedule properties. Even this contention urged on behalf of the appellants cannot be accepted, having regard to the conduct of the predecessor of the appellant who not only executed the sale deed in favour of Lingareddy, but also put Lingareddy in possession and enjoyment of the suit schedule properties as is clear from the recital in the sale deed produced as Ex.P.1/Ex.D.5, which clearly indicates that all right, title, interest, possession, claim etc. over the suit schedule properties had been parted with by the predecessors of the defendants in favour of Lingareddy pursuant to which, they would be estopped both, in fact and law, from putting forth a second claim over the suit schedule property on the specious plea that the sale deed was invalid, which is clearly barred by the principles of in pari delicto which is impermissible in law.

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Under these circumstances, having executed a registered sale deed vide Ex.P.1 dated 03.06.1980 in favour of Lingareddy, the appellants are estopped from challenging the legality or validity of the said sale deed and the said contention also cannot be accepted.

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A perusal of the material on record will also indicate that not only pursuant to the sale deed, dated 36.01.1980, the katha was mutated into the name of Lingareddy, but his name was once again mutated in the revenue records pursuant to the regrant order dated 25.07.1987 passed in his favour, as stated supra, and the revenue records stood in the name of the plaintiffs at the time of filing the suit. It is therefore clear that as on the date of institution of the suit, the plaintiffs were in lawful and peaceful possession and enjoyment of the suit schedule property. It is well settled that the possessory title over immovable property is good and valid against the whole world except the true owner.

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In the instant case, even according to the defendants, the suit schedule property vested with the State Government and they themselves ceased to have any manner of right, title, interest or possession over the suit schedule property upon vesting. It is therefore clear that having lost their title on their own showing by virtue of vesting after the Act came into force, and having lost their possession after executing the sale deed in favour of Lingareddy, it is now not open for the

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defendants to contend that they continue to remain in possession which is also not established by any legal or documentary evidence. Consequently the plaintiffs were in possession and enjoyment from 1980 onwards pursuant to the sale deed and the regrant and the partition between Lingareddy and his brother, Gundappa, and their possessory title over the suit schedule property is valid against the whole world including the defendants herein, whose contention in this regard also cannot be accepted.

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In our considered opinion, that Trial Court has correctly and properly appreciated the aforesaid facts and circumstances and has answered all the issues in favour of the plaintiffs and against the defendants and decreed their suit by holding as hereunder:

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In O.S. No.263/2012

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24. On perusal of the entire materials available on record, it is noticed to the Court that admittedly the above suit filed by the plaintiff for the relief of declaration and consequential relief of permanent injunction in respect of suit schedule property i.e., land bearing Sy.No. 90/A measuring 9.60 acres situated at Uluru village, Karur Hobli, Siruguppa Tq., Ballari Dist. As per the contention of

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the plaintiff during the joint family status, plaintiff purchased the land bearing Sy.No.90A measuring 19.17 acres by virtue of the registered sale deed dated 30.06.1980 from one Dodda Huchappa and Eramma for valid sale consideration. In order to prove the same, the plaintiff has produced Ex.P1 original registered sale deed dated 30.06.1980, on perusal of the same it is noticed to the Court that the said property was purchased by the plaintiff for sale consideration of Rs.6,500/- from one Dodda Huchappa and Eramma who are the exclusive owners of the said property. Later when the plaintiff got knowledge regarding the said property being the personal inam land, as such, he has got applied for abolition of inam and Tahsildar Siruguppa was passed an order dated 4.8.1987 and issued Form No.2 by granting Raithuwari Patta in favour of the plaintiff. But as per the contention of the defendants, the learned Thasildar Siruguppa has no power to pass an order regarding abolition of inam. As per Ex.P25 which has been marked by the plaintiff clearly discloses the fact that the learned Thasildar has passed an order as per Section 11 of Karnataka Land Revenue Act and inam fixed on the suit schedule property was abolished as per inam abolition act 1977 and later he has issued Form No.2 in favour of the plaintiff. The said document clearly discloses the fact that Raithwari Patta has been issued in favour of plaintiff. Later the plaintiff has partitioned the said property including the joint family properties by virtue of family partition and the suit schedule property was fallen to the share of the plaintiff, therefore the plaintiff is in lawful

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possession and enjoyment of the land bearing Sy.No.90/A measuring 9.60 acres. It is very pertinent to note that the plaintiff has not got marked any document in order to show any family partition. But there is no dispute between the parties in this regard, in such circumstances, that the defendants predecessor-in-interest have executed the sale deed dated 30.06.1980 in favour of plaintiff, as such the same is binding on the defendants also. Further on careful perusal of the document it is noticed to the Court that the name of the plaintiff is mutated in the revenue records vide mutation order dated 24.12.1988 in MR No.15/1988-89 as per Ex.P26, on perusal of the same it reveals that the property bearing Sy.no.117B/B measuring 3.38 acres, Sy.No.171B26 measuring 1.08 acres, Sy.No.117A2a measuring 1.27 acres, Sy.No.90A measuring 9.60 acres, Sy.No.170C measuring 0.53 acres are mutated in the name of plaintiff. Accordingly the revenue entries in the name of plaintiff is forthcoming continuously. But on the other hand, the defendants disputing the title to the suit property by denying all the averments of the plaint and contending that their predecessor-in-interest has borrowed the money from the plaintiff and the plaintiff has obtained sale deed dated 30.06.1980 fraudulently and also taken specific contention that the suit land is the inam land therefore, their ancestors have no right to alienate the suit property to the plaintiff. Further taken specific contention that the defendants are in possession of the suit property and the plaintiff is not in possession of the suit property, therefore, the suit of the plaintiff without seeking

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possession is not maintainable. Further they have also taken contention that the suit property is also inam land hence this Court has no jurisdiction to try the matter. Anyhow, the facts regarding sale of the suit schedule property is concerned, the defendants have clearly admitted in their written statement at para NO.14(h), therefore the vendors of plaintiff viz., Dodda Huchappa and Eramma being the owners had alienable right have executed the sale deed as per Ex.P1 in favour of the plaintiff. Moreover, the said document was executed on 30.06.1980. In such circumstances, it was not challenged by the said executants or their legal heirs i.e., the present defendants. Moreover as per well settled law that it should be questioned within three years from the date of said sale deed. But they did not done so. Moreover the recitals of the said document clearly discloses the fact that the suit land was sold out and possession also delivered on the same date to the plaintiff. When the defendants have clearly admitted that the registered sale deed in favour of the plaintiff and it is pertinent to note that in the written statement the defendants have clearly admits the execution of the sale deed, in such circumstances, it can be presumed that the possession also delivered on the same day of the document. But execution of the document itself is not disputed by the defendants, it is only contention that the sale deed obtained by the plaintiff is in fraudulent manner by misusing the illiteracy of the defendants and without knowing the consequences and they might have put the LTM to the said document. But they are not questioned

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the same even though they are alleging that the said allegations are fraud about the sale deed, it is burden on the defendants to prove that the said LTMs of Dodda Huchappa and Eramma have obtained fraudulently because of their illiteracy since 1980 from the date of sale deed i.e., Ex.P1. But the defendants have not challenged the document on this ground, moreover the said document being the registered document and as per the provision of Registration Act, the said document was registered during the course of official discharge as such, the same is official act, therefore the document can be presumed to have been duly executed. In overall evaluation of the oral and documentary evidence and admissions given by the defendants this Court is of the opinion that the execution of the document is not in dispute. Moreover during the course of cross examination of PW1 the counsel for the defendant does not elicit anything in order to prove their defense. Moreover the evidence of the defendants in this regard is no way helpful to the defendants. Moreover on careful perusal of the entire materials there is no document in support of their defense and their title is produced by the defendants to show better title than the plaintiff over the suit schedule property. Hence, from the nature of the document the title of the said property was passed in accordance of Section 54 of Transfer of Property Act. Moreover after obtaining the sale deed, the plaintiff has also obtained Raithuwari Patta at Form No.2 dated 4.8.1987 as per Ex.P25. Even though the defendants filed an appeal by challenging the Ex.P25 in appeal No.567/2010-11

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before the Asst. Commissioner, Ballari and as per the contention of the plaintiff it was opposed by the plaintiff on the ground of inordinate delay and the sale deed i.e., Ex.P1 is already being executed therefore admittedly the said Ex.P25 has not been set aside, hence in the absence of proof of fraud the document being executed by the predecessors of the defendants which is binding on the defendants also, therefore we can presume that the suit land was alienated in favour of plaintiff, therefore the plaintiff has successfully discharged his burden cast on him as per issue No.1.

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25. So far as issue NO.2 is concerned, the plaintiff has also produced Ex.P26 the certified copy of Mutation register extract, on perusal of the same it reveals that the property bearing Sy.no.117B/b measuring 3.38 acres, Sy.No.117B26 measuring 1.08 acres, Sy.No.117A2a measuring 1.27 acres, Sy.No.90A measuring 9.60 acres, Sy.No.170C measuring 0.53 acres are standing in the name of plaintiff. By virtue of the said mutation order as per Ex.P26 the remaining extent of 9.57 acres is also mutated in the name of Kurubara Mangamma. Moreover when there was partition in between the present plaintiff and plaintiffs in OS No.261/2012 which is also filed on the same subject matter, in respect of joint family properties which includes suit property, the above said mutation as per Ex.P26 was passed in favour of them. Since in view of the abolition of inam, the plaintiff as a holder of the property as a purchaser has filed Form NO.1 seeking Raithuwari Patta,

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then they have issued Form No.2, but the contention of the defendants is that the suit land is a inam land therefore form No.2 cannot be issued in favour of plaintiff. In this regard they have challenged the said Form No.2 granted in favour of plaintiff and mutation order also challenged by filing another appeal, but the stay order granted in the said appeal was vacated as per order dated 31.8.2013 and direction was issued in this regard to the defendants to adjudicate the matter before the Civil Court. Moreover the appeal before the Asst. Commissioner Ballari also dismissed as per Ex.P47 by the Asst. Commissioner, Ballari therefore after lapse of 23 years, this defendants have preferred appeal before the Asst. Commissioner to challenging the Raithuwari Patta. Anyhow no order regarding cancellation of the Raithuwari Patta has been granted in favour of the defendants, therefore the mutation in favour of the plaintiff on the basis of family partition indicates the long standing possession and enjoyment over the suit schedule properties of the plaintiff.

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26. Moreover the defendants except contending in their written statement that they are in possession of the suit schedule property, have not produced any piece of document to show that they are in possession of the suit schedule property. It is pertinent to note that once the possession of the suit schedule property was delivered under the registered sale deed dated 30.06.1980 in favour of plaintiff is to be presumed that the possession is in continuation with the title holder since possession

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follows title is well principles of law. Therefore in the absence of any contrary evidence and in the absence of material document it has to be presumed that the revenue entries found in the name of the present plaintiff in respect of suit schedule property indicates that he is in possession of the property which is the law in terms the Section 133 of the Karnataka Land Revenue Act. Therefore, this Court is of the opinion that the plaintiff has clearly established and discharged the burden of issue No.2 before the Court.

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27. So far as issue NO.3 is concerned, this issue has been framed in view of the contentions raised by the defendants regarding maintainability of the suit in para NO.14(k) of their written statement. The order sheet clearly depicts the fact that the defendants have also filed IA No.3 seeking rejection of the plaint by raising same ground that the suit is not maintainable as the appeals are pending before Revenue Authority challenging Raithuwari Patta. This Court heard on IA NO.3 as well as issue NO.3 regarding maintainability and rejected the contention of the defendants as per order on IA No.3 filed by the defendants holding that suit itself is maintainable in view of the finding recorded by this Court the suit is for declaration of title on the basis of the title deed this Court has jurisdiction to try the matter in terms of Section 9 of CPC. Therefore this Court need not go for discussion of the issue No.3 which may be repetition once again.

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28. As far as issue No.4 is concerned, the said

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issue has been arise as per the contention taken by the defendant as per their written statement at para No.14(g) that the plaintiff is never in possession of the suit property hence the suit is not maintainable without seeking possession. In addition to the submission with regard to the possession of the suit property unless and until the defendants placed any material and cogent evidence so in that they are in possession of the suit property, such contention has no importance for discussion. Except taking contention the defendants have not placed any documentary or oral evidence on record in support of their claim. Moreover when the plaintiff has produced title deed coupled with revenue documents indicating possession, question of seeking possession of the property does not arise, because it is well settled preposition of law that possession follows title. In case of open land, this preposition of law is always in favour of the owner that he is in possession of the property. Hence, unless the possession delivered under the sale deed is taken back by the defendants in accordance with law it has to be presumed that the purchaser of the property is always in possession. Moreover the defendants in this case have not produced any document how the plaintiff was dispossessed or out of possession of the suit property when once the sale deed speaks the delivery of the possession infavour of the plaintiff, therefore the contention of the defendants has no merits and the plaintiff is not required to seek the recovery of possession. Therefore, the contention raised by the defendant in this aspect and the issue No.4 has not been

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discharged by the defendants, hence it can be answered as negative.

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29. As far as issue NO.5 is concerned burden of proving the said issue is on the defendants regarding suit is bad for non joinder of necessary party. As per the contention taken by the defendants in their written statement that the children of the defendant No.1 are proper and necessary parties hence without their presence according to them, the present suit is bad for non joinder of necessary party. No doubt, admittedly the present suit for declaration of title and injunction. The cause of action clearly stated by the plaintiff in the plaint has to why the suit is instituted by the plaintiff against the defendants. In a suit for declaration and injunction it is settled preposition of law that only the parties, who are disputing the title and trying to interfere with the possession are proper and necessary parties. Hence, the defendants in this case according to the plaintiffs are disputing title and they have made attempt to trespass into the suit property, as such the cloud over the title required to be removed as against the defendants and hence the suit is directed against the defendants only. Moreover it is not a suit for partition in order to brought all the legal heirs of deceased who are interested in the property are the proper and necessary party to effective decree, therefore the above said persons as per the defense of the defendants are not the proper and necessary party in a suit for declaration of title. Hence, in the absence of children of defendant NO.1 the effective

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decree can be passed adjudicating the dispute in the present case. Even though if the plaintiff has not brought on record the said parties inspite of that if really the children of the defendant No.1 had any interest in the property could have file the impleading application by them, but they did not do so for the reason best known to them. Therefore such contention of the defendants like the suit is bad for non joinder of necessary parties is without any proper explanation and absolutely the suit is maintainable without the legal heirs of the defendant NO.1. In this view this Court is of the opinion that this Court has no hesitate the issue No.5 in the negative.

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30. So far as issue No.6 is concerned regarding interference of the defendants and burden of proving the same is on the plaintiffs. In this regard this Court has noticed in their plaint at para No.6 and 7 of the plaint that the defendant on 31.10.2012 highhandedly made an attempt to trespass into the suit property but this is disputed by the defendants and further contended that the criminal cases against the plaintiffs and their relatives have been filed and also contended that proceedings under Section 107 of Cr.P.C. have been also initiated against both the parties before the Tahsildar Ballari on 16.06.2012, 06.07.2012 according to the defendants have lodged complaint before the police since the plaintiffs made attempts to dispossess the defendants from the suit property. However, nothing is elicited in the cross examination of PW1 questioning the above said events. Hence, this particular pleadings regarding the interference

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is admitted especially when the defendants without title trying to say they are in possession of the property at one stretch and in the cross examination of PW1 suggesting the Government is in possession of the suit property at another stretch. So from the above said pleadings of the defendants for the sake of defending in the suit since the defendants have no right over the suit schedule property have lodged false complaint in order to pressurize the plaintiff to accept their illegal terms the defendants implicated the plaintiff and his family members in such false cases. Anyhow by reading the contention of the defendants indicates that since the defendants attempted to trespass into the land many times which were assisted by the plaintiffs. Hence, this act of the defendants is absolutely an interference with the peaceful possession of the plaintiffs. It is very pertinent to note that in the revenue proceedings in which the revenue authorities visited the spot and submitted report to the Asst. Commissioner Ballari it clearly indicates that the plaintiff is in possession of the suit property and defendants trying to interfere with the harvesting the crop. So the entire evidence on record would clearly indicating that the defendants without any right over the suit schedule property to grab the same by filing criminal cases tried to interfere with the possession. Therefore this Court is of the opinion that the plaintiff discharged his burden by proving the interference by the defendants, hence we can answer the issue NO.6 in the affirmative.

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31. So far as issue No.7 is concerned, in view of reasons assigned in issue No.1 to 6 and in view of proof of title and possession over the suit property by the plaintiff and in the absence of any proof that the defendants have no right over the suit schedule property, the plaintiff is entitle for the relief sought in the plaint. Hence, we can answer the issue No.7 in the affirmative.

¶310

32. Issue No.8:- On the basis of my reasons on issue Nos.1 to 7, I proceed to pass the following :

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O R D E R

¶312

The suit of the plaintiff is hereby decreed with cost.

¶313

Consequently the plaintiff is hereby declared that he is the absolute owner of the suit schedule landed property.

¶314

The defendants their men, agents servants and all such other persons claiming interest through them are hereby restrained from interfering with the peaceful possession and enjoyment of the suit schedule landed property of the plaintiff by way of permanent injunction.

¶315

Draw decree accordingly.”

¶316

In O.S. No.261/2012

¶317

“24. On perusal of the entire materials available on record, it is noticed to the Court that admittedly the above suit filed by the plaintiff for the relief of declaration and consequential relief of permanent injunction in respect of suit schedule property i.e., land

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bearing Sy.No. 90/A/ C measuring 9.57 acres situated at Uluru village, Karur Hobli, Siruguppa Tq., Ballari Dist. As per the contention of the plaintiff one Kurubara Linga Reddy and Gundappa are full blood brothers, plaintiff No.1 is the wife of said Gundappa and plaintiff No.2 is the son of late Gundappa. During the joint family status, Kurubara Linga Reddy purchased the land bearing Sy.No.90A measuring 19.17 acres by virtue of the registered sale deed dated 30.06.1980 in order to prove the same, the plaintiff has produced Ex.P33 certified copy of the registered sale deed dated 30.06.1980, on perusal of the same it is noticed to the Court that the said property was purchased by the Kurubara Linga Reddy for sale consideration of Rs.6,500/from one Dodda Hucahppa and Eramma who are the exclusive owner of the said property. Later when the Kurubara Linga Reddy got knowledge regarding the said property being the personal Inam land as such, he has got applied for abolition of Inam and Tahsildar Siruguppa was passed an order dated 4.8.1987 and issued Form No.2 by granting Raithuwari Patta in favour of the Kurubara Linga Reddy. But as per the contention of the defendant, the learned Tahsildar Siruguppa has no power to pass an order regarding abolition of inam. As per Ex.D9 which has been marked by the defendants clearly discloses the fact that the learned Tahsildar has passed an order as per Section 11 of Karnataka Land Revenue Act and inam fixed on the suit schedule property was abolished as per inam abolition act 1977 and later he has issued Form No.2 in favour of the Kurubara Linga Reddy. The said document

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clearly discloses the fact that Raithwari Patta has been issued in favour of Kurubara Linga Reddy. Later they have partitioned the said property including the joint family properties by virtue of family partition, the suit schedule property was fallen to the share of the plaintiffs, therefore they are in lawful possession and enjoyment of the land bearing Sy.No.90/A/ C measuring 9.57 acres. It is very pertinent to note that the plaintiff has not got marked any document in order to show any family partition. But there is no dispute between the parties in this regard, in such circumstances, that the defendants predecessor-ininterest have executed the sale deed dated 30.06.1980 in favour of plaintiff, as such the same is binding on the defendants also. Further on careful perusal of the document it is noticed to the Court that the name of the plaintiff is mutated in the revenue records vide mutation order dated 26.01.1989 in MR No.15/1988-89 as per Ex.P12, on perusal of the same it reveals that the property bearing Sy.no.117A2B measuring 1.30 acres, Sy.No.117A2B2 measuring 0.50 acres, Sy.No.109A/1 measuring 2.47 acres, Sy.No.117A2A measuring 1.20 acres, Sy.No.90A measuring 9.57 acres, Sy.No.170E measuring 0.51 acres are mutated in the name of plaintiff. Accordingly the revenue entries in the name of plaintiff is forthcoming continuously. But on the other hand, the defendants disputing the title to the suit property by denying all the averments of the plaint and contending that their predecessor-in-interest has borrowed the money from the plaintiff and the plaintiff has obtained sale deed dated 30.06.1980 fraudulently

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and also taken specific contention that the suit land is the Inam land therefore, their ancestors have no right to alienate the suit property to the plaintiffs. Further taken specific contention that the defendants are in possession of the suit property and the plaintiff is not in possession of the suit property, therefore, the suit of the plaintiff without seeking possession is not maintainable. Further they have also taken contention that the suit property is also Inam land hence this Court has no jurisdiction to try the matter. Anyhow, the facts regarding sale of the suit schedule property is concerned, the defendants have clearly admitted in their written statement at para NO.14(h), therefore the vendors of Kurubara Linga Reddy viz., Dodda Huchappa and Eramma being the owners had alienable right have executed the sale deed as per Ex.P33 in favour of the plaintiffs. Moreover, the said document was executed on 30.06.1980. In such circumstances, it was not challenged by the said executants or their legal heirs i.e., the present defendants. Moreover as per well settled law that it should be questioned within three years from the date of said sale deed. But they did not done so. Moreover the recitals of the said document clearly discloses the fact that the suit land was sold out and possession also delivered on the same date to the plaintiffs. When the defendants have clearly admitted that the registered sale deed in favour of the Kurubara Linga reddy and it is pertinent to note that in the written statement the defendants have clearly admits the execution of the sale deed, in such circumstances, it can be presumed that the possession also delivered on the

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same day of the document. But execution of the document itself is not disputed by the defendants, it is only contention that the sale deed obtained by the Kurubara Linga Reddy is in fraudulent manner by misusing the illiteracy of the defendants and without knowing the consequences and they might have put the LTM to the said document. But they are not questioned the same even though they are alleging that the said allegations are fraud about the sale deed, it is burden on the defendants to prove that the said LTMs of Dodda Huchappa and Eramma have obtained fraudulently because of their illiteracy since 1980 from the date of sale deed i.e., Ex.P33. But the defendants have not challenged the document on this ground, moreover the said document being the registered document and as per the provision of Registration Act, the said document was registered during the course of official discharge as such, the same is official act, therefore the document can be presumed to have been duly executed. In overall evaluation of the oral and documentary evidence and admissions given by the defendants this Court is of the opinion that the execution of the document is not in dispute. Moreover during the course of cross examination of PW1 the counsel for the defendant does not elicit anything in order to prove their defense. Moreover the evidence of the defendants in this regard is no way helpful to the defendants. Moreover on careful perusal of the entire materials there is no document in support of their defense and their title is produced by the defendants to show better title than the plaintiff over the suit

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schedule property. Hence, from the nature of the document the title of the said property was passed in accordance of Section 54 of Transfer of Property Act. Moreover after obtaining the sale deed, the plaintiff has also obtained Raithuwari patta at Form No.2 dated 4.8.1987 as per Ex.P25 produced and get it marked in OS No.263/2012. Even though the defendants filed an appeal by challeging the Ex.P25 of OS 263/2012 in appeal No.567/2010-11 on the file of Asst. Commissioner, Ballari and as per the contention of the plaintiff it was opposed by the plaintiff on the ground of inordinate delay and the sale deed i.e., Ex.P33 is already being executed therefore admittedly the said Ex.P25 of OS NO.263/2012 which is also connected to the same subject matter of instant case, has not been set aside, hence in the absence of proof of fraud the document being executed by the predecessors of the defendants which is binding on the defendants also, therefore we can presume that the suit land was alienated in favour of plaintiffs, therefore the plaintiffs have successfully discharged their burden cast on them as per issue No.1.

¶338

25. So far as issue NO.2 is concerned, the plaintiff has also produced Ex.P12 the certified copy of Mutation register extract, on perusal of the same it reveals that the property bearing Sy.no.117A2B measuring 1.30 acres, Sy.No.117A2B2 measuring 0.50 acres, Sy.No.109A/1 measuring 2.47 acres, Sy.No.117A2A measuring 1.20 acres, Sy.No.90A measuring 9.57 acres, Sy.No.170E measuring 0.51 acres

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are standing in the name of plaintiff. By virtue of the said mutation order as per Ex.P12 the remaining extent of 9.60 acres is also mutated in the name of plaintiff No.1 who is none other than the wife of his brother viz., Kurubara Linga Reddy. Moreover when there was partition in between the present plaintiffs and husband brother in respect of joint family properties which includes suit property, the above said mutation as per Ex.P12 was passed in favour of them. Since in view of the abolition of inam, the plaintiffs as a holder of the property as a purchaser has filed Form NO.1 seeking Raithuwari patta, then they have issued Form No.2, but the contention of the defendants is that the suit land is a inam land therefore form No.2 cannot be issued in favour of Kurubara Linga Reddy who is none other than the husband brother of plaintiff No.1. In this regard they have challenged the said form No.2 granted in favour of Kurubara Linga Reddy and mutation order also challenged by filing another appeal, but the stay order granted in the said appeal was vacated as per order dated 31.8.2013 and direction was issued in this regard to the defendants to adjudicate the matter before the Civil Court. Moreover the appeal before the Asst. Commissioner Ballari also dismissed as per Ex.P47 of OS No.263/2012 by the Asst. Commissioner, Ballari therefore after lapse of 23 years, this defendants have preferred appeal before the Asst. Commissioner to challenging the Raithuwari patta. Anyhow no order regarding cancellation of the Raithuwari patta has been granted in favour of the defendant, therefore the mutation in favour of the plaintiffs on the

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basis of family partition indicates the long standing possession and enjoyment over the suit schedule properties of the plaintiff.

¶346

26. Moreover the defendants except contending in their written statement that they are in possession of the suit schedule property, have not produced any piece of document to show that they are in possession of the suit schedule property. It is pertinent to note that once the possession of the suit schedule property was delivered under the registered sale deed dated 30.06.1980 in favour of Kurubara Lingareddy is to be presumed that the possession is in continuation with the title holder since possession follows title is well principles of law. Therefore in the absence of any contrary evidence and in the absence of material document it has to be presumed that the revenue entries found in the name of the present plaintiff in respect of suit schedule property indicates that they are in possession of the property which is the law in terms the Section 133 of the Karnataka Land Revenue Act. Therefore, this Court is of the opinion that the plaintiffs have clearly established and discharged the burden of issue No.2 before the Court.

¶347

27. So far as issue NO.3 is concerned, this issue has been framed in view of the contentions raised by the defendants regarding maintainability of the suit in para NO.14(k) of their written statement. The order sheet clearly depicts the fact that the defendants have also filed IA No.3 seeking rejection of the plaint by raising same

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ground that the suit is not maintainable as the appeals are pending before Revenue Authority challenging Raithuwari patta. This Court heard on IA NO.3 as well as issue NO.3 regarding maintainability and rejected the contention of the defendants as per order on IA No.3 filed by the defendants holding that suit itself is maintainable in view of the finding recorded by this Court the suit is for declaration of title on the basis of the title deed this Court has jurisdiction to try the matter in terms of Section 9 of CPC. Therefore this Court need not go for discussion of the issue No.3 which may be repetition once again.

¶352

28. As far as issue No.4 is concerned, the said issue has been arise as per the contention taken by the defendant as per their written statement at para No.14(g) that the plaintiff is never in possession of the suit property hence the suit is not maintainable without seeking possession. In addition to the submission with regard to the possession of the suit property unless and until the defendants placed any material and cogent evidence so in that they are in possession of the suit property, such contention has no importance for discussion. Except taking contention the defendants have not placed any documentary or oral evidence on record in support of their claim. Moreover when the plaintiffs have produced title deed coupled with revenue documents indicating possession, question of seeking possession of the property does not arise, because it is well settled preposition of law that possession follows title. In case of open land, this preposition of law is always in favour of

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the owner that he is in possession of the property. Hence, unless the possession delivered under the sale deed is taken back by the defendant in accordance with law it has to be presumed that the purchaser of the property is always in possession. Moreover the defendants in this case have not produced any document how the plaintiffs were dispossessed or out of possession of the suit property when once the sale deed speaks the delivery of the possession infavour of the said Kurubara Linga Reddy, therefore the contention of the defendants has no merits and the said Kurubara Linga Reddy is not required to seek the recovery of possession. Therefore, the contention raised by the defendant in this aspect and the issue No.4 has not been discharged by the defendants, hence it can be answered as negative.

¶357

29. As far as issue NO.5 is concerned burden of proving the said issue is on the defendants regarding suit is bad for non joinder of necessary party. As per the contention taken by the defendants in their written statement that the children of the defendant No.1 are proper and necessary parties hence without their presence according to them, the present suit is bad for non joinder of necessary party. No doubt, admittedly the present suit for declaration of title and injunction. The cause of action clearly stated by the plaintiff in the plaint has to why the suit is instituted by the plaintiff against the defendants. In a suit for declaration and injunction it is settled preposition of law that only the parties, who are disputing the title and trying to interfere with the

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possession are proper and necessary parties. Hence, the defendants in this case according to the plaintiffs are disputing title and they have made attempt to trespass into the suit property, as such the cloud over the title required to be removed as against the defendants and hence the suit is directed against the defendants only. Moreover it is not a suit for partition in order to brought all the legal heirs of deceased who are interested in the property are the proper and necessary party to effective decree, therefore the above said persons as per the defense of the defendants are not the proper and necessary party in a suit for declaration of title. Hence, in the absence of children of defendant NO.1 the effective decree can be passed adjudicating the dispute in the present case. Even though if the plaintiffs have not brought on record the said parties in spite of that if really the children of the defendant No.1 had any interest in the property could have file the impleding application by them, but they did not do so for the reason best known to them. Therefore such contention of the defendants like the suit is bad for non joinder of necessary parties is without any proper explanation and absolutely the suit is maintainable without the legal heirs of the defendant NO.1. In this view this Court is of the opinion that this Court has no hesitate the issue No.5 in the negative.

¶362

30. So far as issue No.6 is concerned regarding interference of the defendants and burden of proving the same is on the plaintiffs. In this regard this Court has noticed in their plaint at para No.6 and 7 of the plaint that

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the defendant on 31.10.2012 highhandedly made an attempt to trespass into the suit property but this is disputed by the defendants and further contended that the criminal cases against the plaintiffs and their relatives have been filed and also contended that proceedings under Section 107 of Cr.P.C. have been also initiated against both the parties before the Tahsildar Ballari on 16.06.2012 and 06.07.2012 according to the defendants have lodged complaint before the police since the plaintiffs made attempts to dispossess the defendants from the suit property. However, nothing is elicited in the cross examination of PW1 questioning the above said events. Hence, this particular pleadings regarding the interference is admitted especially when the defendants without title trying to say they are in possession of the property at one stretch and in the cross examination of PW1 suggesting the Government is in possession of the suit property at another stretch. So from the above said pleadings of the defendants for the sake of defending in the suit since the defendants have no right over the suit schedule property have lodged false complaint in order to pressurize the plaintiffs to accept their illegal terms the defendants implicated the plaintiffs and their family members in such false cases. Anyhow by reading the contention of the defendants indicates that since the defendants attempted to trespass into the land many times which were assisted by the plaintiffs. Hence, this act of the defendants is absolutely an interference with the peaceful possession of the plaintiffs. It is very pertinent to note that in the revenue proceedings in which

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the revenue authorities visited the spot and submitted report to the Asst. Commissioner Ballari it clearly indicates that the plaintiffs are in possession of the suit proeprty and defendants trying to interfere with the harvesting the crop. So the entire evidence on record would clearly indicating that the defendants without any right over the suit schedule property to grab the same by filing criminal cases tried to interfere with the possession. Therefore this Court is of the opinion that the plaintiffs have discharged their burden by proving the interference by the defendants, hence we can answer the issue NO.6 in the affirmative.

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31. So far as issue No.7 is concerned, in view of reasons assigned in issue No.1 to 6 and in view of proof of title and possession over the suit property by the plaintiffs and in the absence of any proof that the defendants have no right over the suit schedule property, the plaintiffs are entitle for the relief sought in the plaint. Hence, we can answer the issue No.7 in the affirmative.

¶371

32. Issue No.8:- On the basis of my reasons on issue Nos.1 to 7, I proceed to pass the following :

¶372

O R D E R

¶373

The suit of the plaintiffs is hereby decreed with cost.

¶374

Consequently the plaintiffs are hereby declared that they are the absolute owners of the suit schedule landed property.

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The defendants their men, agents servants and all such other persons claiming interest through them are hereby restrained from interfering with the peaceful possession and enjoyment of the suit schedule landed property of the plaintiffs by way of permanent injunction.

¶378

Draw decree accordingly.”

¶379

Upon re-appreciation, re-consideration and re-

¶380

evaluation of the entire material on record, we are of the considered view that the Trial Court was fully justified in upholding the claim of the plaintiffs and rejecting the claim of the defendants by passing the well reasoned and well considered judgment and decree, which cannot be said to suffer from any illegality, nor can the same be said to be perverse or capricious warranting interference by this Court in the present appeal. Accordingly, Point Nos.(i) and (ii) are answered against the appellants. There is no merit in the appeals which are liable to be dismissed. Hence the following:

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ORDER

¶382

i) The appeals are dismissed.

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ii) The judgments and decrees dated 19.01.2019 passed in O.S. No.263/2012 and O.S. No.261/2012 by the II Additional Senior Civil Judge, Ballari, sitting at Siruguppa, are affirmed.

¶386

iii) Pending interlocutory applications do not survive for consideration and are disposed off accordingly.

¶387

iv) Registry to draw the decree accordingly.

¶388

Sd/(S.R. KRISHNA KUMAR) JUDGE

¶389

Sd/(C.M. POONACHA) JUDGE

¶390

YAN, KMS CT-MCK List No.: 1 Sl No.: 14

Smt.Eshwaramma W/O Gadilingpapa v. Smt.Kurubara Mangamma W/O Alte Gundappa

Case brief

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Smt.Eshwaramma W/O Gadilingpapa v. Smt.Kurubara Mangamma W/O Alte Gundappa

Case brief

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