Sri D Ramakrishnappa Vs Sri Chikkamuniyappa

1A. B.C. THAMANNA S/O. CHIKKAMUNIYAPPA AGED ABUT 70 YEARS R/AT NO.252, INDIRAMMANAVARA MANE SIDDAPURA VILLAGE, NEAR D-MART, WHITEFIELD MAIN ROAD BENGALURU - 560 066.

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1B. SMT. RUKMINIYAMMA D/O LATE CHIKKAMUNIYAPPA AGED ABOUT 64 YEARS NO.37, SWAMY VIVEKANANDA ROAD, 1^ST MAIN ROAD, 4^TH CROSS ROAD, VIVEKANANDA NAGAR,

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NC: 2025:KHC:45200 RSA No. 1000 of 2009

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HOSAKOTE TOWN - 562114

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1C. B.C. NARAYANAPPA S/O LATE CHIKKAMUNIYAPPA AGED ABOUT 62 YEARS VIVEKANANDANAGAR SHREYAS HOSPITAL ROAD 8^TH CROSS ROAD, K.R. ROAD HOSAKOTE TOWN, BANGALORE RURAL DISTRICT - 562 114.

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1D. SMT. PARVATHAMMA D/O. LATE CHIKKAMUNIYAPPA AGED ABOUT 60 YEARS R/AT NAGARENAHALLI VILLAGE SULIBELE HOBLI, BEGUR POST HOSKOTE TALUK - 562 122. BANGALORE RURAL DISTRICT

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1E B.C. RAJANNA S/O LATE CHIKKAMUNIYAPPA AGED ABOUT 57 YEARS R/AT BETTAHALLI VILLAGE SULIBELE HOBLI & POST SRI. MARUTHI SEEDS SULIBELE MAIN ROAD HOSAKOTE TALUK, BANGALORE RURAL DISTRICT - 562 129

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SRI. B.C. MUNEGOWDA S/O CHIKKAMUNIYAPPA, AGED ABOUT 54 YEARS BETTAHALLI VILLAGE, SULIBELE HOBLI HOSAKOTE TALUK, BANGALORE DISTRICT.

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…RESPONDENTS

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(BY SRI. H.M. SOMASHEKARAIAH, ADVOCATE FOR R2 R1(A), R1(C), R1(D), R1(E) - SD V/O DATED:27/1/25, SERVICE OF NOTICE TO R1(B) IS HELD SUFFICIENT)

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THIS RSA IS FILED U/S 100 OF CPC, AGAINST THE JUDGMENT & DECREE DTD 3.3.2009 PASSED IN R.A.NO.5/2004 ON THE FILE

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THE PRESIDING OFFICER, FTC-III, PRL. DISTRICT JUDGE, BANGALORE (R) DISTRICT, BANGALORE, ALLOWING THE APPEAL AND SETTING ASIDE THE JUDGMENT AND DECREE DTD 2.12.2003 PASSED IN OS. 425/1995 ON THE FILE OF THE CIVIL JUDGE (JR.DN) & JMFC., HOSKOTE.

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THIS RSA, COMING ON FOR FINAL HEARING, THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER: CORAM: HON'BLE MRS. JUSTICE M G UMA

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ORAL JUDGMENT

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The plaintiff in OS.No.425/1995 on the file of the learned Civil Judge (Jr.Dn.), Hosakote (hereinafter referred as to 'Trial Court'), is impugning the judgment and decree dated 03.03.2009 passed in RA.No.5/2004 on the file of the learned Presiding Officer, Fast Track Court-III, Bangalore Rural District (hereinafter referred as to 'First Appellate Court') allowing the appeal by setting aside the judgment and decree passed by the Trial Court dated 02.12.2003, consequently, dismissing the suit of the plaintiff for permanent injunction.

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For the sake of convenience, the parties shall be referred to as per their rank and status before the Trial Court.

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Facts of the case in brief are that, the plaintiff filed the suit in OS.No.425/1995 before the Trial Court against defendant Nos.1 and 2, who are the father and son, seeking

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permanent injunction in respect of the property bearing old Sy.No.11 and new Sy.No.96 measuring 6 acres situated at Vanamanahalli Village, Sulibele Hobli, Hosakote Taluk, with the boundaries mentioned therein, which is referred to as the suit schedule property. It is the contention of the plaintiff that he is the absolute owner of the schedule property, as the same was granted in his favour by the Special Deputy Commissioner for Abolition of Inams, Bangalore, as per Ex.P1. Thus, he is in peaceful possession and enjoyment of the suit schedule property without interference. On the basis of grant, khata was transferred in the name of plaintiff and the RTC is standing in his name. The plaintiff was paying tax, which evidences his lawful possession. The Deputy Tahsildar, Nadakacheri has issued the land cultivation declaration certificate in favour of the plaintiff. Thus, the plaintiff is in lawful and peaceful possession and enjoyment of the schedule property.

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It is contended that the defendants are the residents of the same village and they are not having any manner of right, title and interest over the schedule property. They started interfering with the peaceful possession and

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enjoyment of the plaintiff. The cause of action arose on 15.10.1995 when the defendants tried to destroy the crops standing in the schedule land. However, the plaintiff prevented the defendants with the help of neighbors. Therefore, the plaintiff approached the Trial Court for grant of permanent injunction, restraining the defendants from interfering with the peaceful possession and enjoyment of the schedule property.

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The defendants have appeared before the Trial Court represented by their advocates and filed the written statement denying the contentions taken by the plaintiff and contended that the suit for permanent injunction is not maintainable. It is contended that the date of grant referred to by the plaintiff is on 17.10.1976, which falls on Sunday and a Government holiday. Therefore, it is clear that Ex.P1 - the grant order is concocted documents. It is also contended that defendants were in possession of larger extent of Sy.No.11 of Vanamanahalli Village, Sulibele Hobli, Hosakote Taluk as Jodi Inams Land. It is contended though the defendants were in cultivation of larger extent of Sy.No.11 since time immemorial, and they were in cultivation as on 1958, the date on which the

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Inams Abolition Act came into force. In view of the orders passed by the Special Deputy Commissioner for the Inams Abolition Act, the land which was not in cultivation was recognized as karab land. The defendants, brought the portion of land for cultivation and accordingly, the defendants are cultivating the land in question by paying tax to the Government. It is stated that one Sri Munishamappa, Sri Chikkamuniyappa, Sri. B.C. Thamanna and Sri B.M. Muniyappa were also the other farmers, who were cultivating the remaining portions of the land in Sy.No.11.

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The defendants contended that the plaintiffs have purchased a portion of land measuring 2.30 acres in Sy.No.11 under the sale deed dated 07.08.1984, but were not in possession and enjoyment of Sy.No.11. Therefore, the defendants contended that the possession of defendants over the suit schedule property is actual, open and notorious, hostile and they continue to exclusively hold it for a period of twenty years. Thus, the defendants have perfected their title by adverse possession to the knowledge of the plaintiff. Hence,

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the plaintiff is not entitled for any relief. Accordingly, he prays

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for dismissal of the suit.

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On the basis of these pleadings, the following issues

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came to be framed by the Trial Court:

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"1. Whether the plaintiff proves that he is in possession and enjoyment of the suit schedule property as on the date of suit?

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2. Whether the alleged interference is true?

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3. What order or decree?"

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The plaintiff examined PWs.1 to 3 and got marked Exs.P1 to 21 in support of his contention. The defendants got examined DWs.1 to 3 and got marked Exs.D1 to 9 in support of their contention. The Trial Court after taking into consideration all these materials on record, answered issue Nos.1 and 2 in the affirmative and formed an opinion that the plaintiff is in lawful possession and enjoyment of the schedule property. Accordingly, decreed the suit of the plaintiff.

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Being aggrieved by the same, the defendants have

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preferred RA.No.5/2004. The First Appellate Court on reappreciation of the materials on record held that, Ex.P1 - the

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grant certificate relied on by the plaintiff was issued on Sunday.

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The defendants have produced pocket calendar as per Ex.D8. The Court has taken a judicial note that, on general holiday the grant order could not have been passed. It also held that when the grant order is in serious dispute, the Court could have impleaded the Government exercising the power under Order I Rule 10 of CPC as it is the necessary party. It also held that when Ex.P1 is challenged by the defendants as fabricated document, the burden is on the plaintiff to prove the same, which was not discharged by him. Therefore, the First Appellate Court allowed the appeal by setting aside the judgment and decree passed by the Trial Court. Consequently, the suit of the plaintiff was dismissed. Being aggrieved by the same, the plaintiff is before this Court.

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Heard Sri. C.M. Nagabhushana, learned counsel for Sri. Srihari A.V., learned counsel for the appellant and Sri. H.M.Somashekaraiah, learned counsel for respondent No.2. Perused the materials including the Trial Court records.

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As per order dated 06.01.2012, the following substantial questions of law were framed for consideration:

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"a) Whether the First Appellate Court is justified in reversing the judgment and decree of the Trial Court only on the ground that the Special Deputy Commissioner for Abolition of Inams had passed the order granting occupancy right on a Sunday without considering the oral and other documentary evidence establishing possessory rights of the plaintiff over the suit property as on the date of the suit?

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b) Whether the First Appellate Court was justified in not considering the presumptive value of the undisputed revenue entries showing the name of the plaintiff in column no.9 and column no.12 (2) of R.T.C for the year 1979-80 to 1998-99 as per Exs.P-3 to P-5 and P-9 to P-14 while upsetting the judgment and decree of the Trial Court?

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c) Whether the findings of the First Appellate Court on the issue relating to lawful possession of the plaintiff over the suit schedule property and interference from the defendants are perverse?"

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During the pendency of the appeal, the appellant has filed IA No.1/2018 under Order 41 Rule 27 of CPC to produce additional documents. The appellant has produced three certified copies i.e., the judgment in OS.No.998/1995 on the file of the learned Principal Senior Civil Judge, Bengaluru Rural District, Bengaluru dated 16.12.2017, along with decree and the amended plaint in OS.No.998/1995.

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In view of filing IA No.1/2018, the following

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question will arise for consideration:

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" Whether the appellant has made out any grounds for allowing IA No.1/2018 filed for production of additional documents?"

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My answer to the above point is in the Affirmative and for

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the substantial question of law in favour of the appellants for the following:

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REASONS

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It is the contention of the plaintiff that he is in lawful possession and enjoyment of the schedule property since time immemorial, as it was an Inam land. It was granted in his favour as per grant order - Ex.P1. Ex.P1 appears to be the original grant order signed by the Special Deputy Commissioner dated 17.10.1976.

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The main contention taken by the defendants are that the grant order - Ex.P1 is dated 17.10.1976, which happens to be a Sunday. Therefore, it is the contention of the

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defendants that this grant order is a concocted document and no reliance can be placed on the same.

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Ex.P2 is an endorsement issued by the Special

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Deputy Commissioner Inam Abolition dated 17.10.1976 acknowledging the application submitted by the plaintiff for change of khata on the basis of grant order and ordering to register the plaintiff as occupant in respect of the schedule property. As per the grant order, Exs.P1, 3 to 5, 9 to 14 are various record of rights in respect of the schedule property and all are standing in the name of the plaintiff, as the owner in occupation of the property. Ex.P6 is the mutation register extract pertaining to the schedule property, according to which, the property is mutated in the name of the plaintiff as per MR3/79-80.

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Ex.P7 is the copy of Akarbandh, according to which,

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the schedule property was in occupation of the plaintiff. Ex.P8 is the preliminary record in respect of the schedule property, according to which, the same stands in the name of the plaintiff and he is paying the assessment. There is reference to the order dated 17.10.1976 i.e., Ex.P1 and MR3/1979-80.

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Ex.P15 is the Tax paid receipt for the year 1998-99 in the name of the plaintiff. Ex.P16 is the mahazar. Ex.P17 is the Hiduvali certificate. Ex.P18 is the Tippani. Ex.P19 is the survey sketch in respect of schedule property, which all supports the contention of the plaintiff regarding grant of land in his favour and he being in lawful possession and enjoyment of the schedule property.

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As per Section 133 of the Karnataka Land Revenue Act, 1964, there is a presumption regarding entries in the record of rights and certified copies of the register of mutation, that it shall be presumed to be true until the contrary is proved or new entry is lawfully substituted thereof. Various revenue documents referred to above produced and relied on by the plaintiff fully supports his contention with regard to grant made in his favour and he is in peaceful possession and enjoyment of the schedule property.

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Ex.P1 was issued by Special Deputy Commissioner appointed under the Inam Abolition Act for the special task to consider the applications under the Special enactment Act. Moreover, the defendants have never challenged Ex.P1, till

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date, before the competent authority. Only because Ex.P1 was issued on Sunday, it cannot be a reason to form an opinion that it is a concocted document, ignoring all other revenue document including record of rights standing in the name of the plaintiff based on Ex.P1. Under such circumstances, I am of the opinion that the contention of the defendants that Ex.P1 is concocted document, cannot be accepted.

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Even if the contention of the defendants that Ex.P1 is the concocted document is to be taken into consideration, the plaintiff would not have dated the concocted document on a Sunday. He would have taken sufficient precaution to date it on a working day. Therefore, I do not find any justification for the defendants in denying Ex.P1 without challenging the same in accordance with law.

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Admittedly, the defendants came to know about grant order - Ex.P1, when the plaintiff has filed the suit against them. Even thereafter, no steps have been taken to challenge Ex.P1 and under such circumstances, defendants are prevented from raising such dispute.

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In the written statement, defendants have taken a contention that it was defendants, who are in actual possession and enjoyment of the schedule property as jodi Inam lands. Defendants produced Exs.D1 to 3 the RTCs in respect of Sy.No.11 measuring 8.15 acres classified as Government Kharab. Definitely, it is not in respect of schedule property for which, the plaintiff produced Exs.P3 to 5, 9 to 14 and other revenue documents. Admittedly, old Sy.No.11 totally measures more than 27 acres. Under such circumstances, Exs.D1 to 3 will not come to the help of the defendants to prove their possession over the schedule property.

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Exs.D4 and 5 are the applications submitted by one Chikkamuniyappa as Jodidar in respect of 4 acres of land, but in Ex.P4 there is no reference to the said survey number, and the application came to be dismissed. Ex.D5 is the application in respect of 4 acre of land, which came to be rejected as per order Ex.D4. Ex.P6 is also in respect of 4 acres of land in Sy.No.11 and not in respect of schedule property. None of the documents produced by the defendants support their contention to prove their possession or to disprove the

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contention of the plaintiff regarding lawful possession and enjoyment of the schedule property.

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Learned counsel for the appellant filed IA No.1/2018 under order 41 Rule 27 of CPC, producing the certified copy of the judgment passed in OS.No.998/1995 dated 16.12.2017 on the file of the Prl. Senior Civil Judge, Bengaluru Rural District, Bengaluru. As per this document, plaintiffs Smt. Akkayamma, Muniyappa, Munibyrappa, who are the wife and children of late Munishamappa, his two daughters Nanjamma and Byramma have prosecuted the suit for declaration and injunction.

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Ex.P20 is the certified copy of the plaint in OS.No.998/1995, according to which, originally, Munishamappa S/o late Byrappa filed the suit for declaration of his title and for permanent injunction in respect of another 26.5 acres of land in Sy.No.11 of Vanamanahalli village, against plaintiff/appellant and the Tahasildar of Hoskote. Admittedly, the said Munishamappa, the original plaintiff in OS.No.998/1995 is the brother of defendant No.1 and the general Power of Attorney holder, who was representing the plaintiff in the said suit is

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none other than, defendant No.2. As per the recitals in the plaint, the plaintiff therein was cultivating the entire land of 26.5 acres in Sy.No.11 of Vanamanahalli village, and the grant was made in his favour under Abolition of Inams Act by the Special Deputy Commissioner as per the order dated 10.09.1975. Therefore, he sought for declaration of his title and permanent injunction against the plaintiff.

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The first additional document produced by the plaintiff being the certified copy of the judgment in OS.No.998/1995 discloses that, as many as nine issues were framed by the Trial Court based on the pleadings, and issues Nos. 1 to 8 were answered in the negative and accordingly, it held that the plaintiff therein had not proved that the Special Deputy Commissioner has issued occupancy right in respect of suit schedule property in his name, or that he was in possession and enjoyment of the property since more than 35 years. Accordingly, the Trial Court dismissed the suit of the plaintiff.

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It is stated that being aggrieved by the dismissal of the OS.No.998/1995, legal representatives of the original

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plaintiff therein have preferred the appeal in RA No.5/2018 before the learned First Additional District and Sessions Judge, Bengaluru Rural District. The copy of judgment passed in RA No.5/2018 is produced by the learned counsel for the appellant, according to which, the appeal came to be dismissed confirming the judgment and decree passed by the Trial Court. It is stated that now the plaintiffs in the said suit have preferred second appeal in RSA No.65/2025, which is still pending for consideration before this Court. All these additional documents are admitted documents.

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When the plaintiff in the present suit is successful in proving his ownership and the lawful possession over the schedule property, the burden shifts on the defendant to prove his contention or to falsify the contention taken by the plaintiff. From the oral and documentary evidence placed before the Court, the defendants are not successful in discharging the burden. Under such circumstances, the plaintiff is entitled for the permanent injunction as sought in the plaint.

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The additional document produced by the appellant throw much light on the contention taken by the defendants

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and therefore, the said application is liable to be allowed. Moreover, the additional document produced allowing IA No.1/2018 are the certified copy of the judgment and amended plaint, which are admitted documents. Under such circumstances, IA No.1/2018 is liable to be allowed.

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I have gone through the impugned judgment and decree passed by the Trial Court. On proper appreciation of the materials on record, it came to the conclusion that the plaintiff has proved his lawful possession and enjoyment of the schedule property and the defendants are interfering with the peaceful possession and enjoyment of the plaintiff, and hence decreed the suit.

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The First Appellate Court after extracting findings recorded by the Trial Court in its judgment at paragraph 8, formed an opinion in paragraph 9 that, Ex.P1 was issued on a Sunday, and the same is to be taken a judicial note by the Court. As per Section 9 of the Inam Abolition Act, only Inamdar could seek grant of occupancy right, but an occupant cannot seek such relief, and on that ground also Ex.P1 was disbelieved. The First Appellate Court has also gone to the

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extent of saying that, when defendant disputes Ex.P1, the Trial Court should have invoked Order 1 Rule 10 CPC and should have impleaded the Government as necessary party.

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In view of clinching materials that are placed before the Court by the plaintiff, I am of the opinion that the First Appellate Court has mislead itself in forming such opinion, which is not based on any materials on record. Simply because the defendant has disputed the genuinity of Ex.P1, the Court held roving enquiry with regard to the same, ignoring all the subsequent revenue records based on Ex.P1 and also ignoring the facts that the defendants have never challenged Ex.P1 in accordance with law.

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Now it is to be noticed that even OS.No.998/1995 filed by the brother of the plaintiff in respect of entire extent of Sy.No.11 came to be dismissed by holding that, he had not proved his title over the property, nor proved possession. Under such circumstances, I find considerable force in the contention taken by the appellant in the present appeal.

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The First Appellate Court was not justified in reversing the impugned judgment and decree passed by the

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Trial Court, only on the ground that the Special Deputy Commissioner for Abolition of Inam has passed the grant order on a Sunday, while ignoring the oral and documentary evidence on record. I am of the opinion that the First Appellate Court has also ignored Section 133 of Land Revenue Act which deals with raising presumption in respect of revenue records, which was never rebutted by the defendants. Under such circumstances, the impugned judgment and decree passed by the First Appellate Court is liable to be set-aside. Accordingly, the substantial question of law framed are answered in favour of the appellant and against respondent and the point raised above is answered in the Affirmative and proceed to pass the following:

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ORDER

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(i) IA.No.1/2018 is allowed, the appellant is

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permitted to produce additional documents under Order 41 Rule 27 of CPC.

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(ii) The appeal is allowed with cost.

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(iii) The judgment and decree passed in RA.No.5/2004 on the file of the learned Preceding

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Officer Fast Track Court-III, Bangalore Rural District

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is set-aside.

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(iv) As a result, the suit of the plaintiff is decreed and the judgment and decree dated 02.12.2003 passed in OS.No.425/1995 on the file of the Civil Judge (Jr.Dn.), Hosakote is restored.

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Registry is directed to send back the Trial Court

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records along with copy of this judgment.

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SD/(M G UMA) JUDGE

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PNV/BH

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CT:VS

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List No.: 1 Sl No.: 3

Sri D Ramakrishnappa v. Sri Chikkamuniyappa

Case brief

What is this about?

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Sri D Ramakrishnappa v. Sri Chikkamuniyappa

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