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1988 DIGILAW 300 (KAR)

DANAKAYUVA VEERABHADRAPPA v. A. GANGAMMA

1988-07-18

M.P.CHANDRAKANTARAJ

body1988
CHANDRAKANTARAJ, J. ( 1 ) THIS matter coming up for orders on the i. A. , is disposed of finally after hearing the learned Counsel for the parties. ( 2 ) PLAINTIFF filed suit for injunction restraining the defendant from interfering with the peaceful possession and enjoyment of the suit schedule land which happens to be sy. No. 14 measuring 9 acres 64 cents in byalachintha village, Bellary Taluk. It was the plaintiffs case that her husband purchased the land by registered sale deed as far back as in the year 1932. Thereafter the plaintiff and her sons have been in possession of the property. ( 3 ) THE Government acquired the land for the purpose of establishing field channels. But her averment is that the Government has not yet taken possession of the same. She was troubled by the defendants who illegally entered into suit property under the impression that it is a Government Porambokuland. Therefore, she presented the suit seeking in-junction restraining defendants from entering and disturbing her peaceful possession of the same and while doing so she presented an application I. A. II for temporary injunction. ( 4 ) THE defendants who entered appearance resisted I. A. II by filing counter on 31-1-1986. They admitted that the suit land had been purchased by the plaintiffs husband. In regard to other allegations, they denied it. They also admitted that the land was acquired but denied the assertion that possession had not been taken. It was their case that the Government acquired the land for constructing the canal. They also asserted that Government had not taken steps to take possession. ( 5 ) HOWEVER, both sides filed record of rights extracts which show that the plaintiff was cultivating an extent of 3 acres 75 cents in the said survey number while the record of rights produced by the defendants was that they were also cultivating a portion of the land. In that circumstance, the trial Court declined to grant temporary injunction holding that the defendants were in possession and therefore their possession could not be disturbed by a temporary injunction. ( 6 ) ON appeal by the plaintiff, the appellate Court has taken a different view and in my opinion correctly so. In that circumstance, the trial Court declined to grant temporary injunction holding that the defendants were in possession and therefore their possession could not be disturbed by a temporary injunction. ( 6 ) ON appeal by the plaintiff, the appellate Court has taken a different view and in my opinion correctly so. The appellate Court has at length discussed the circumstances under which the record of rights were obtained by both the parties and the date on which they were obtained. It suspected that both the extracts which have come from the same source could not have disclosed different persons to be cultivating the land. It was in that circumstances, the lower appellate Court came to the conclusion that the trial Court erred in relying upon The record of rights extracts and therefore rejected both the extracts as not reliable and which would give rise any presumption under Section 133 of the karnataka Land Revenue Act. Its further reasoning is that the defendants had not put in any other evidence to show that the land had been acquired and had been taken possession and they have encroached on government property. In fact, the land was acquired for the field channels or even canal is not disputed. The entire extent of 9 acres could not have been acquired for the purpose. If there is no evidence of government having taken possession and on the contrary the admission that the government has not taken possession by the defendants should lead only to one conclusion that the plaintiff was in possession of the land. ( 7 ) IN the circumstances, the lower appellate Court is justified in interfering with the order of the trial Court and granting injunction protecting the possession of the owner as against strangers. Ultimately, both the sides will have to establish as to how much is in their respective possession. ( 8 ) THE lower appellate Court's order does not call for interference. Revision is rejected. --- *** --- .