JUDGMENT : 1. The present appeal is by the plaintiff before the trial Court being aggrieved by the dismissal of the suit in O.S.No.58/2006 filed by the plaintiff as also dismissal of R.A.No.37/2011. 2. The parties are referred to by their ranks before the trial Court for the purpose of convenience. 3. The plaintiff, T.M. Munireddy has filed O.S.No.34/2006 seeking for relief of declaration that the plaintiff is the owner and in peaceful possession and enjoyment of the suit schedule property. The relief of permanent injunction against the defendant is also sought for. The schedule property is described as land bearing Sy.No.168 (resurvey No.310) measuring 3 acres situated at Varlakonda Village, Somenahalli Hobli, Gudibanda Taluk, Kolar District. 4. The plaintiff has claimed that the suit schedule property was acquired by way of Grant vide order No.LND/RUO/(S) 32/9192 in the name of K.N. Manjulamma D/o Narayanappa. It is further submitted that the plaintiff and his brother Narayanappa and Narayanappa’s daughter K.N.Manjulamma had entered into a partition and in the said partition, the property has fallen to the share of the plaintiff. Copy of the said partition deed is marked as Ex.P28. 5. It is further submitted that all the revenue records have been transferred into the name of the plaintiff pursuant to the partition deed Ex.P28. It is submitted that in the light of the act of trespass by the defendant into the suit schedule property in the last week of April, 2006, the plaintiff was constrained to file the suit. The defendant, on the other hand has filed the written statement contesting the claim of the plaintiff. While denying the averments of the plaintiff, the defendant has put forth her case at paragraph No.8 of the written statement and contends that the suit schedule property was obtained by way of a Grant pursuant to the application for regularization of unauthorized occupation. The parties have led in evidence and trial Court has disposed of the suit as per the judgment dated 13.01.2011. The trial Court while discussing the evidence has, however, failed to record any categorical finding as regards to the issue relating to declaration while holding that the challenge with respect to the revenue entries pending adjudication in W.P.No.33412/2010 in having attained finality and also in light of Section 63 of the Karnataka Land Revenue Act, 1964, the suit was not maintainable. As against the said judgment and decree, RA No.37/2011 came to be filed by the plaintiff and the appellate Court has rejected the appeal and while doing so, the appellate Court has adverted to the facts, materials and evidence on record and recorded a categorical finding as regards the question of ownership of the plaintiff. The appellate Court has applied its mind to the question as to whether the matter is required to be remanded before the trial Court and after referring to the power available under Order 41 Rule 24 of C.P.C and referring to the judgments of the Apex Court in ‘K. KRISHNA REDDY AND ORS. VS. SPECIAL DEPUTY COLLECTOR’ reported in (1988) 4 SCC 163 and ‘K.KRISHNA REDDY AND OTHERS VS. SPECIAL DEPUTY COLLECTOR, LAND ACUISITION UNTIII, LMD KARIMNAGAR, ANDHRA PRADESH’ reported in (1983) 3 SCC 294 has appreciated the evidence and other material on record and held that the plaintiff has not made out case for grant of the relief of declaration. 6. It is relevant to note that the case that is made out by the plaintiff was with regard to right, title and interest having devolved upon the plaintiff by way of allotment of the schedule property to the share of the plaintiff in a partition and it is stated that the property was granted to K.N. Manjulamma, who is asserted to be the daughter of the plaintiff’s brother. The defence of the defendant as noticed above was that the defendant was the beneficiary of the grant and in fact the defendant has stepped into the witness box and led in evidence. The appellate Court has rightly observed that the plaintiff has failed to lead evidence of his brother’s sisterManjulamma. It is relevant to note that the plaintiff had filed the application under Order 1 Rule 10 subRule 2, copy of which has been produced and marked as Ex.D2 seeking to implead K.N. Manjulamma, daughter of Narayanappa W/o Conductor Srinivasappa. The said application filed by the plaintiff was dismissed as not maintainable. 7. It is asserted by the learned counsel appearing for the respondent that K.N. Manjulamma, W/o conductor Srinivasappa is none other than the defendant herself and accordingly, rejection of the application is proper and correct. The said application filed by the plaintiff was dismissed as not maintainable. 7. It is asserted by the learned counsel appearing for the respondent that K.N. Manjulamma, W/o conductor Srinivasappa is none other than the defendant herself and accordingly, rejection of the application is proper and correct. Curiously, another application came to be filed under Order 1 Rule 10 SubRule 2 seeking to implead K.N. Manjulamma, D/o Cashnur Narayanappa, W/o Laxman Reddy, which came to be dismissed as not pressed. 8. No material is forthcoming as to why the plaintiff’s brother’s daughter K.N. Manjulamma, did not come forward to lead any evidence. No explanation is put forth as regards to the unwillingness of his brother’s daughter to come to Court. It has been construed rightly by the Appellate Court to be fatal to the case of the plaintiff. It is to be noted that in a suit for declaration in light of the nature of the defence, whereby the defendant has claimed that the suit schedule property was granted to the defendant by name Manjulamma, who is not the same person as claimed by the plaintiff as being his brother’s daughter. It was the duty of the plaintiff to make out a legally acceptable case to have adverted to and disproved the said contention of the defendant and for that purpose, the evidence of the defendant’s brother’s daughter K.N.Manjulamma was essential. Non tendering of evidence by K.N. Manjulamma and non explanation as to why the said Manjulamma did not come to Court would result in drawing of adverse inference against the plaintiff. It could also be stated that the plaintiff has failed to discharge the burden to prove the case that the plaintiff’s brother’s daughter Manjulamma was the Grantee through whom right has flowed, consequent to the partition at Ex.P28. This version has not been proved with sufficient legally acceptable evidence. 9. Insofar as the approach of the first appellate Court in disagreeing with the finding of the trial Court that the Court did not have jurisdiction by virtue of Section 63 of the Act to entertain the suit, the same cannot be faulted. On plain reading of Section 63 of the Act would point out a bar operating only where the proceedings are as against the Government. 10. On plain reading of Section 63 of the Act would point out a bar operating only where the proceedings are as against the Government. 10. The appellate Court has rightly exercised jurisdiction under Order 41 Rule 24 in light of all the evidence being available when no purpose would have been served by remanding the matter back to the trial Court. The appellate Court has also recorded the finding while taking note of non adducing of the evidence of Manjulamma, and such finding of the appellate court is also not liable to be interfered with. 11. It is also relevant to note that as per the memorandum of grant reflecting the proceedings relating to grant as per Ex.P13, there is a reference that K.N. Manjulamma belongs to ‘Balajiga’ by caste. It is also not in dispute that the plaintiff belongs to Vokkaliga by caste, which has been noticed by the appellate Court at paragraph No.17 of its judgment. If that way be so, when the original grantee belong to Vokkaliga caste, case that is made out to the plaintiff that the grant was made to the brother’s daughter appears doubtful and the same has not been clarified. The appellate Court has also recorded the findings as regards to suspicion raised with respect to genuiness of Ex.P28. 12. Accordingly, in light of the discussion as made above, no substantial question of law arises for consideration and no grounds are made out to interfere with the finding of the first appellate Court. Accordingly, the second appeal is dismissed.