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2015 DIGILAW 500 (KAR)

Sharadamma v. Shivaji Gowda A. S.

2015-04-29

N.KUMAR

body2015
ORDER : N. Kumar, J. 1. The defendant No. 6 has preferred this writ petition challenging the order passed by the Lower Appellate Court granting an order of injunction restraining the defendants in the suit from interfering with peaceful possession and enjoyment of the plaint schedule property during the pendency of the suit. 2. The plaintiff has filed a suit for declaration that he has perfected his title by adverse possession and for a decree of permanent injunction restraining the defendants from interfering with his peaceful possession and for other consequential reliefs. The defendants contend that the schedule property originally belonged to one Ajjappa Gowda, adoptive father of the plaintiff and due to his default in payment of 'kandayam', the authorities of the Government sold the property in a public auction. One Gurubasappa Wodeyar purchased the said property. Thereafter the purchasers are put in possession. Subsequently, revenue entries are made in their name and therefore, it is the defendants, who are in possession and not the plaintiff and therefore, they contend that there is no merit in the suit. 3. In the said suit, an application is filed for an order of temporary injunction. The defendants contested the matter. The Trial Court, on consideration of the material on record, after hearing both the parties, was of the view that the plaintiff has failed to make out a prima facie case of lawful possession of the schedule property and therefore, dismissed the application for injunction. 4. Aggrieved by the said order, the plaintiff preferred Misc. Appeal No. 9/2009. The Lower Appellate Court after considering the rival contentions and after taking note of the evidence on record and the reliance placed on by the parties, recorded a finding of fact that though the property was sold in a public auction for non-payment of tax, the said Ajjappa Gowda continued to be in possession of the schedule property as a cultivator. After his death, his wife Mahadevamma continued to cultivate the land. Her name is entered in column No. 12(2) from 1965-66 to 1986-87 for 22 years. During this period, the defendants have not produced any document to show that earlier to 1965-66, the purchaser Gurubasappa Wodeyar was in possession at the time of purchasing the suit land in auction sale. After his death, his wife Mahadevamma continued to cultivate the land. Her name is entered in column No. 12(2) from 1965-66 to 1986-87 for 22 years. During this period, the defendants have not produced any document to show that earlier to 1965-66, the purchaser Gurubasappa Wodeyar was in possession at the time of purchasing the suit land in auction sale. Admittedly, the deceased Gurubasappa Wodeyar and his family members are residing in Andige village, which is at the distance of about 35-40 kms from the suit property. The subsequent entries made from 1994-95, in the name of the 5th defendant and his brother in the column at 12(2) as 'Cultivators' is not based on actual possession, but is based on the Rule of the Revenue Department that in the absence of a tenancy application, the entries in the khatedar and cultivators column should be made in the name of the same person and therefore, he held prima facie, the plaintiff has made out a case of possession over the schedule property from the date of the suit and granted an order of temporary injunction as prayed for. 5. Aggrieved by the said order, only the 6th defendant has preferred this writ petition. It is submitted that the appeal filed by defendants 1 to 5 was dismissed on the ground that they have already sold the property in favour of the 6th defendant. 6. The learned counsel for the petitioner assailing the impugned order contended that the sale of the schedule property by the predecessor-in-title of the 6th defendant is admitted in the written statement. The documents produced by the defendants shows that from 1959-60, the name of the purchaser was mutated in revenue records. It is by mistake from 1965-66 onwards, the name of Mahadevamma was mutated. On realizing the mistake, an application was made and mutation entries were corrected and the plaintiff was never in possession of the property and it is the defendants, who are in possession after the death of the original owners. He had purchased the property from them and therefore, the order passed by the Trial Court is ex facie illegal and requires to be set-aside. 7. He had purchased the property from them and therefore, the order passed by the Trial Court is ex facie illegal and requires to be set-aside. 7. From the aforesaid facts and rival contentions and the submissions made, the point that arises for my consideration is: "Whether a case for interference is made out with the order of the Lower Appellate Court, which has recorded a categorical finding that prima facie, the plaintiff is in possession of the property.?" 8. It is not in dispute that the schedule property originally belonged to Ajjappa Gowda. It is also not in dispute that in 1946-47, the suit property was sold by the authority of the Government for non payment of land revenue. The purchasers, who purchased the property are residents of Andige village, which is about 40 to 45 kms from the schedule property. From 1965-66 for 22 continuous years, the name of the wife of Ajjappa Gowda namely Mahadevamma is entered in the cultivators column. The name of the purchaser is shown in the column meant for showing the ownership. Thereafter, the name of the purchaser is shown as the owner but his name was not shown as cultivator. In the cultivator's column, the name of Mahadevamma, W/o. Ajjappa Gowda, the original owner continued to be shown. It shows that for 22 long years the purchaser was not in possession. The records produced before the Trial Court shows Mahadevamma paid tax on 02.05.1969, 22.05.1970, 19.03.1971, 10.08.1973 up to 22.08.1992 in the name of the purchasers i.e., the cultivators. Therefore, it shows not only Mahadevamma continued to enjoy the property, but also promptly paid tax to the Government in the name of the cultivator. It is not in dispute that the plaintiff is an adopted son of Mahadevamma, as evidenced by registered adoption deed. Subsequently, entries are changed in the name of the purchasers. The endorsement issued by the Tahsildar makes it clear that in the absence of an application in Form No. 7, the Revenue Rules prescribe that the entries in the cultivator and the kathadar's column should be one and the same. Therefore, to bring it in conformity with the said Rules, the name of the purchasers were shown as cultivators as their names were shown as kathedars. Therefore, the entry of the purchaser's name in the cultivator's column does not prove their possession. Therefore, to bring it in conformity with the said Rules, the name of the purchasers were shown as cultivators as their names were shown as kathedars. Therefore, the entry of the purchaser's name in the cultivator's column does not prove their possession. As such an entry is not made as contemplated under Section 129 of the Karnataka Land Revenue Act. Mahadevamma and the plaintiff were not heard in the matter. They had no notice. Therefore, the Lower Appellate Court, on proper appreciation of the documentary evidence, has come to the conclusion that the plaintiff has made out prima facie case of possession and their possession is to be protected. Accordingly, the order of temporary injunction is granted. 9. The present petitioner is a purchaser of the suit property in the year 2007. The persons from whom she purchased the property was not in possession. In fact she purchased the property after filing of the suit and hence, it is hit by doctrine of lis pendence. Certainly, she is not entitled to assert her title in the suit and at any rate, she cannot claim to be the purchaser. In that view of the matter, the impugned order is legal and valid and do not call for interference. There is no merit in this writ petition. Hence, petition is dismissed. It is made clear that the observations made in this order should not be taken into consideration by the Trial Court while deciding the case on merits.