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2018 DIGILAW 577 (KAR)

Yallappa S/o. Basappa Koppad v. Tahasildar, Saudatti, Dist. Belagavi

2018-04-26

KRISHNA S.DIXIT

body2018
JUDGMENT : This Appeal is directed against the Judgment and Decree dated 24.10.2017 entered by the learned Senior Civil Judge, Saudatti in R.A.No.42/2016 whereby the Judgment and Decree dated 30.10.2015 passed by the learned Addl. Civil Judge, Saudatti have been reversed and suit of the Appellant has been dismissed. 2. Brief facts stated are : (a) The land bearing survey No.298 of Ugargol Village measuring 06 acres 09 guntas was acquired by the Land Acquisition Officer for the purpose of Malaprabha project, Saudatti for storing the soil which was dug out from the canal. The acquisition was in the year 1972. The owner i.e. the land loser has been paid the compensation. (b) The Appellant-Plaintiff gained entry to this land way back in 1980s and gradually occupied a portion of 03 acres leaving the remaining land for the use of the Government. The plaintiff has been cultivating the land and that he has improved it also in due course by investing money and toil continuously and that the land is thus rendered tillable. (c) Under the schemes of Government for the grant of lands to the unauthorized occupants, the plaintiff has submitted an application to the first Respondent-Tahashildar seeking the grant of the suit land. The Revenue Inspector has conducted the spot inspection and submitted a report at Ex.P-3 favoring the case of the plaintiff for the grant specifically stating that the Plaintiff has been in the cultivation of the land. (d) The Village Accountant of Ugargol village too has visited the land and after holding a spot enquiry has issued a certificate to the effect that the Plaintiff has been in the occupation and cultivation of the suit land which is marked as Ex.P-3. The Chairman of Uagargol Gram Panchayat has also issued a similar certificate which has been marked as Ex.P-2. (e) When this was the position the Respondent Officers with intent to illegally remove the Plaintiff from the occupation of the suit land had started digging the ground with the help of JCB for planting trees. The request of the Defendant not to interfere with his possession fell on their deaf ears. With an intent to protect his possession and also reap the standing crops of Maize and Bengal Gram, the Appellant filed a Civil Suit in O.S.No.42/2016 seeking a decree of permanent injunction. The request of the Defendant not to interfere with his possession fell on their deaf ears. With an intent to protect his possession and also reap the standing crops of Maize and Bengal Gram, the Appellant filed a Civil Suit in O.S.No.42/2016 seeking a decree of permanent injunction. After service of notice the Respondent Officials entered appearance through the Government Advocate and filed a detailed Written Statement resisting the suit. (f) From the side of the Plaintiff, Plaintiff himself was examined as PW-1 and one Dareppa S/o. Bhimappa Gudennavar was examined as PW-2. In their evidence 07 documents came to be marked as Ex.P-1 to P-7. From the side of the Respondents, one Sri Manjunath Shivappa Karoshi an official of the Horticulture Department was examined as DW-1. In his evidence, 04 documents came to be marked as Ex.D-1 to D-4. The Trial Court by its Judgment and Decree dated 30.10.2015 decreed the suit by granting an order of permanent injunction restraining the Respondents from interfering with Appellant’s possession of the suit land without resorting to the due process of law. 3. The Respondent officials, aggrieved by the decree of the Trial Court preferred an Appeal in R.A.No.42/2016. The Appellate Court considered the pleadings of the parties, re-appreciated both facts and evidence on record and rendered the Judgment and Decree dated 24.10.2017 reversing that of the Trial Court and further dismissing the suit of the Appellant. The Appellate Court has specifically recorded a finding that the Appellant is not in the possession of the suit land on the basis of the documentary evidence and also the oral evidence of DW-1. Aggrieved by this the Appellant has knocked at the doors of this Court in Second Appeal. 4. The learned counsel for the appellant vehemently contended that the Chairman of the Gram Panchayat, the Village Accountant and the Revenue Inspector have given independent certificates specifically stating that the Appellant has been cultivating the suit land since decades ; the Appellant who was examined as PW-1 and another person namely Dareppa who was examined as independent witness PW-2 have also deposed the same and that nothing worth mentioning has been elicited in their cross-examination to impeach their version. That being so, the lower Appellate Court is not justified in upsetting the findings of the Trial Court as to Appellant’s possession of the suit land. 5. That being so, the lower Appellate Court is not justified in upsetting the findings of the Trial Court as to Appellant’s possession of the suit land. 5. The learned counsel for the Appellant also contended that all the three officials mentioned above are high functionaries of the Government and that they have issued the certificates in question at Ex.P-2, P-3 & P-4 in due discharge of their official duties and therefore, in the absence of rebuttal material the version emerging from these certificates ought to have been given due deference by the lower Appellate Court since the contents of these documents have presumptive value under the law. 6. On the basis of the submissions made above the counsel for the Appellant drew my attention to the following substantial questions of law framed by him at para 20 and 21 of the Appeal memo: (a) Whether the First Appellate Court has justified by allowing appeal by setting aside the Judgment and Decree of the Trial Court without considering the documentary evidence? (b) Whether the First Appellate Court has justified in allowing the Appeal without considering the factum of possession by the plaintiff to the extent of 3 Acres of land? 7. I have heard the learned counsel for the Appellant and also the learned Government Pleader representing the Respondents for quite a long period. I have also perused the original Lower Court Records. The Trial Court on the basis of the Certificates issued by the Chairman of the Gram Panchayat, the Revenue Inspector and the Village Accountant has recorded a finding that the Appellant is in the occupation of the suit land to the extent of 03 acres, though the authors of these certificates have not been examined as the witnesses by the Plaintiff’s side. No explanation is offered for not examining them. No circumstances have been explained as to how the occasion for issuing such certificates arose. Therefore, the lower Appellate Court has rightly discarded these certificates as being unworthy of credit. 8. The lower Appellate Court has also considered the depositions of two witnesses examined on the side of the Plaintiff and the deposition of one official witness examined on behalf of Respondents. It has also considered the entries in the revenue records and also other documents marked in the evidence of DW-1 Manjunath Shivappa Karoshi an Assistant Horticulture Officer from Saudatti. The lower Appellate Court has also considered the depositions of two witnesses examined on the side of the Plaintiff and the deposition of one official witness examined on behalf of Respondents. It has also considered the entries in the revenue records and also other documents marked in the evidence of DW-1 Manjunath Shivappa Karoshi an Assistant Horticulture Officer from Saudatti. The said Official has specifically stated that the suit land along with other lands have been entrusted by the Government to the Department of Horticulture which has planted several trees. Nothing has been elicited from his cross-examination to discredit his version. There is also no reason for this official to speak falsehood from the witness box. 9. Although, the Regular Second Appeal ordinarily is confined to substantial question/s of law, this Court took pains to go through the entire Lower Court Records to examine whether the lower Appellate Court has committed any error of law or error of fact in the exercise of re-appreciation of both facts and evidence. There is absolutely no error in the findings of the lower Appellate Court which is generally treated as the final court on facts, in the absence of circumstances warranting indulgence in it’s findings. 10. There is one more aspect that calls for the attention of this Court namely, the Appellant at his plaint para 2 dated 21.01.2010 has averred that ‘since last 25 years’ he has been in possession of suit land. Arithmetically this goes back to 1985 or so. However, in his application dated 27.10.2009 at Ex.P-5, the Appellant has stated that he has been cultivating the land since last 22 years. This goes back to 1988. In his cross-examination in March 2014, the Appellant has stated that he has been in the possession of the land since last 25 years. The PW-2 Mr. Dareppa S/o. Bhimappa Gudennavar in para 3 of his affidavit evidence dated July 2014 has stated that the Appellant has been cultivating the suit land since last 28 years. Thus, there is a lot of inconsistency in the figures. 11. However, in his cross-examination on 04.06.2015, PW-2 has specifically admitted that the suit land belongs to the ownership of the Horticulture Department and that the Department has grown the trees in the same. No re-examination is done by the Plaintiff to discredit it. Thus, there is a lot of inconsistency in the figures. 11. However, in his cross-examination on 04.06.2015, PW-2 has specifically admitted that the suit land belongs to the ownership of the Horticulture Department and that the Department has grown the trees in the same. No re-examination is done by the Plaintiff to discredit it. Therefore, the finding recorded by the lower Appellate Court as to Appellant not being in the possession of the suit land cannot be faulted with. This apart, admittedly the appellant claims to gained entry to the Government land illegally. Nothing is stated about the circumstances which metamorphize the bare entry into a settled occupation followed by exclusive possession of the land. 12. The arguments advanced by the learned counsel for the Appellant related to the findings as to the possession, and therefore they are the questions of fact, miles away from the questions of law and much less the substantial questions of law. Except what is contended above, no other argument is advanced by the learned counsel for the Appellant. 13. This Regular Second Appeal is un-worthy of admission, since no substantial question/s of law arise for consideration and therefore, the same is dismissed.