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1990 DIGILAW 449 (KAR)

IMAMSAB MALIKSAB HALLIKERI v. RASULBI

1990-08-23

M.P.CHANDRAKANTARAJ

body1990
CHANDRAKANTARAJ, J. ( 1 ) THIS is a defendants' second appeal against the lower appellate court's judgment reversing the finding of the trial court and giving the relief prayed for by the plaintiffs. ( 2 ) THE plaintiffs brought the suit fora permanent injunction restraining the defendants from interfering with their peaceful possession and enjoyment of the suit schedule properties. The suit schedule properties consisted of two bits of agricultural lands bearing S. Nos. 173/4 plus 5 and 216/3 plus 4 measuring 2 acres 13 guntas and 5 acres 22 guntas respectively in sasvihalli in navalgund taluk, dharwad district as well as the house bearing vpc. no. 384/b situated at sasvihalli. The plaintiffs claimed that the suit properties were once owned by hasansab who died in the year 1970-71. His widow, and plaintiff-2 sunabi, his daughter, after the death of hasansab continued in possession and enjoyment of the suit lands and the house as owners. They filed an application to have their namas entered in the record of rights and necessary mutation was done and duly certified. Thereafter, defendant- 1 had given a false application to have his name included in the mutation register as the owner. That was objected to by the plaintiffs. The matter on the revenue side was heard and the application of defendant-1 to interpolate himself as successor to hasansab came to be rejected. An appeal against the order to the assistant commissioner came to be dismissed. In that circumstance, the plaintiffs being ladies, the defendants began to obstruct their peaceful possession of the properties which compelled the plaintiffs to approach the court for injunction. ( 3 ) DEFENDANTS 1 to 4 entered appearance and contested the suit. They alleged that the plaintiffs were not the owners of the property and that the plaintiffs were not in possession of the properties. They were not residing in sasvihalli. They were residing at asundi in gadag taluk. Plaintiff-1 was not widow of hasansab, nor the 2nd plaintiff, the daughter. The plaintiffs were strangers to the suit properties. The order of the tahsildar and the other authorities were not binding on the defendants as they were not competent to decide civil rights. The plaintiffs suit was not maintainable as they had sought for declaration of title. Therefore, the suit might be dismissed with costs. ( 4 ) ON such pleadings, the lower court framed the following issues. The order of the tahsildar and the other authorities were not binding on the defendants as they were not competent to decide civil rights. The plaintiffs suit was not maintainable as they had sought for declaration of title. Therefore, the suit might be dismissed with costs. ( 4 ) ON such pleadings, the lower court framed the following issues. (1) whether the plaintiffs prove that they are in exclusive lawful possession of the suit property as contended by them ? (2) whether the defendants prove that the suit in the present form is not maintainable ? (3) to what order and reliefs the parties are entitled to ? ( 5 ) THE trial court examined six witnesses for plaintiffs and as many as 17 documents were marked for them. On behalf of the defendants, four witnesses were examined and 14 documents marked for them. The trial court held, the plaintiffs failed to prove possession and also that the suit was not maintainable for permanent injunction. That was challenged in appeal. The appellate court reversed that finding on the ground that the trial court's judgment called for interference in as much as it was not only illegal but also rendered with material irregularity. ( 6 ) IN fact, the more appropriate expression the lower appellate court should have used to describe the judgment of the trial court was that the judgment was perverse. The trial court had failed to understand the issues raised in the suit and decided the matters which were not pleaded by the plaintiffs. It totally misdirected itself in the application of law and principles governing the granting of injunctions temporary or permanent. The lower appellate court relied upon the presumptive value available to the plaintiffs in regard to their possession on the basis of entries in the record of rights in so far as it related to the agricultural lands. In the absence of any rebutable evidence to destroy that presumption under sec. 133 of the Karnataka land revenue Act, the lower appellate court came to the conclusion that possession of the plaintiffs of the-agricultural lands, the suit schedule properties was unquestionable and the refore they were entitled to injunction. In so far as the house property was concerned, the lower appellate court also came to the conclusion that the plaintiffs had not proved their possession. In so far as the house property was concerned, the lower appellate court also came to the conclusion that the plaintiffs had not proved their possession. ( 7 ) IN the result, the appeal came tobe partly allowed and injunction granted in respect of interference to their possession and enjoyment of the suit schedule agricultural lands. Therefore, the present appeal by the defendants. ( 8 ) NO question of law as such has been formulated muchless a substantial question of law for decision by this court. The only proposition of law canvassed by the learned counsel for the appellants Shri b. Mahabalesh for Shri v. t raya reddi is that without seeking declaration of title to the properties in question, the plaintiffs could not have maintained a suit merely for injunction based on possession. That is not a proposition of law but misstatement of law. Normally, the Rule is that even the trespasser in possession may maintain a'suit for injunction against all but the true owner. If that is the basis for seeking a permanent injunction then the plaintiffs had demonstrated more than that. The lower appellate court was rights in attaching due importance to presumption arising under sec 13 of the land revenue act and due regard being had to the proceedings before the revenue authorities to which the defendants in the suit were parties. The assertion in the written statement that defendants were not bound by the proceedings before the revenue authorities was again a mis statement of law which the trial court should not have countenanced. Though civil procedure does not apply to the proceedings before the revenue authorities but the constructive res judicata principle may be extended when question of possession and cultivation of the property was directly examined by the revenue authorities and decided against the defendants. Particularly, in regard to possession as evidenced by the entries in the record of rights. Undoubtedly, the revenue authorities have no right to decide title. In fact, they have not decided the title. They have only entered the names of the plaintiffs on such enquiry as was required to be made before changing the entries in the record of rights after the death of hasan sab. If the defendants were aggrieved by their failure to get that rectified to their advantage, the defendants should have approached the civil court for relief and not the other way. If the defendants were aggrieved by their failure to get that rectified to their advantage, the defendants should have approached the civil court for relief and not the other way. ( 9 ) THEREFORE, there is no merit in this appeal and it is' rejected. Appeal rejected. --- *** --- .