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2021 DIGILAW 570 (KAR)

Khambrunissa v. Pyuarukhan

2021-04-17

NATARAJ RANGASWAMY

body2021
JUDGMENT : 1. This appeal is filed by the legal representatives of deceased defendant No.2 in O.S.No.124/2013 challenging the judgment and decree of the First Appellate Court in R.A. No.89/2015 by which it reversed the judgment and decree of the Trial Court in O.S.No.124/2013 decreeing the counter claim filed by the defendant No.2. 2. The plaintiff filed a suit for perpetual injunction in respect of land bearing R.S. No.121 of Mathodu village, Holalur hobli, Shivamogga taluk measuring 1.39 guntas and claimed that the said property was granted to him in the year 2004. He claimed that he was cultivating the said property for more than 30 years before the grant and was residing in a house situate on the suit property. He alleged that the defendants were trying to grab the suit property from the plaintiff and hence, sought for perpetual injunction. 3. The defendant No.2 contested the suit and claimed that they were the owners of 6-32 acres along with 18 guntas in kharab Sy. No.121 of Mathodu village and were in possession for more than 50 years. He claimed that his father was cultivating the aforesaid property as a tenant under Kudli Mutt as the said property belonged to the Mutt. The defendants claimed that they were in peaceful possession and enjoyment of the aforesaid property which was described in the written statement. They claimed that it was the plaintiff who attempted to interfere with their possession on 18/2/2013. The defendants sought counter claim of injunction against the plaintiff in respect of the written statement property. 4. Based on these rival contentions, the Trial Court framed the following issues : i. Whether the plaintiff proves that he is in possession and enjoyment over the suit schedule property? ii. Whether the plaintiff proves the alleged interference by defendants over the suit schedule property? iii. Whether the plaintiff is entitled for the relief of permanent injunction as prayed in this suit? iv. Whether the defendants are entitled for the relief as sought in counter claim? v. What order or decree? 5. The plaintiff was examined as P.W.1 and he marked documents Exs.P-1 to P-39. The defendant No.2 was examined as D.W.1 and he marked documents Exs.D1 to D-26. 6. Based on the oral and documentary evidence, the Trial Court held that the plaintiff had failed to prove his possession over the suit property and thus dismissed the suit. 7. 5. The plaintiff was examined as P.W.1 and he marked documents Exs.P-1 to P-39. The defendant No.2 was examined as D.W.1 and he marked documents Exs.D1 to D-26. 6. Based on the oral and documentary evidence, the Trial Court held that the plaintiff had failed to prove his possession over the suit property and thus dismissed the suit. 7. Insofar as the counter claim is concerned, the Trial Court noticed that similar suits were filed in O.S. No.173/2006 and O.S. No.718/1991 against the defendants and that the said suits were dismissed. Therefore, the Trial Court held that the defendants were in possession of the written statement properties based on the revenue documents and thus, decreed the counter claim filed by the defendants in respect of the property described in the written statement. 8. In an appeal preferred by the plaintiff against the judgment and decree of the Trial Court, the First Appellate Court reversed the judgment and decree of the Trial Court insofar as it related to decreeing the counter claim of the defendants on the ground that the defendants had failed to produce the judgment and decree passed in O.S. No.173/2006 and O.S. No.718/1991. It also held that mere dismissal of the said suits cannot not ipso facto result in a presumption that the defendants were in possession of the property described in the written statement. The First Appellate Court also considered Ex.P-26 which disclosed that the father of defendant No.2 (Kasim Sab) had filed an application to Special Deputy Commissioner Inam Abolition which was dismissed on 16/2/1962. It also revealed that defendants No.1 and 2 had filed an application under the Mysore Inams Abolition Act, 1954 on the ground that their father was a tenant in respect of Sy. No.121 of Mathodu village. It was found that the Land Tribunal had passed an order dtd. 4/5/1992 and dismissed the application filed by the defendants 1 and 2. Thereafter the said order was challenged before this Court in W.P. No.28037/1992 and this Court directed the Land Tribunal to hold fresh enquiry. The First Appellate Court held that the land bearing Sy. No.121 of Mathodu village was an Inam land and soon after the promulgation of the Mysore Inams Abolition Act, 1954 under Sec. 4(4) of the Mysore Inams Abolition Act, 1954, the land vested in the State Government, free from all encumbrances. The First Appellate Court held that the land bearing Sy. No.121 of Mathodu village was an Inam land and soon after the promulgation of the Mysore Inams Abolition Act, 1954 under Sec. 4(4) of the Mysore Inams Abolition Act, 1954, the land vested in the State Government, free from all encumbrances. Therefore, the First Appellate Court held that the proceedings in respect of regrant of the land in Sy. No.121 of Mathodu village was not concluded. Therefore, it held that the defendants had not established their right in respect of the written statement schedule property and thus held that the defendants had not proved their lawful possession over the suit property and thus allowed the appeal and set aside the decree of the counter claim of the defendants. 9. Being aggrieved by the aforesaid judgment and decree of the First Appellate Court, the defendants have filed this Regular Second Appeal. 10. The learned counsel for the defendants contended that their claim for regrant of the land in question is now pending before this Court in W.P. No.54265/2016. He contended that he was in possession of the written statement and therefore, he is deemed to be in possession of the suit property. He further stated that the vesting of the property under Sec. 4(4) of the Mysore Inams Abolition Act, 1954 does not result in automatic dispossession from the property. He further contended that since proceedings for regrant are pending for consideration before this Court, his possession in the written statement property has to be protected. 11. I have given my anxious consideration to the arguments canvassed by the learned counsel for the defendants. 12. The defendants did not dispute the fact that the land bearing Sy. No.121 measuring 6 acres 32 guntas of Mathodu village is an Inam land and that soon after the promulgation of the Mysore Inams Abolition Act, 1954, the said land vested in the State Government, free from all encumbrances. It is seen from Ex.P26 that the father of defendant No.2 had sought occupancy rights which was rejected in terms of the Order dtd. 16/2/1962. The defendant Nos.1 and 2 had later filed an application which was rejected by the Tribunal which was challenged before this Court in W.P.No.28037/1992. 13. It is seen from Ex.P26 that the father of defendant No.2 had sought occupancy rights which was rejected in terms of the Order dtd. 16/2/1962. The defendant Nos.1 and 2 had later filed an application which was rejected by the Tribunal which was challenged before this Court in W.P.No.28037/1992. 13. It is the claim of the defendants that proceedings are initiated for regrant of the written statement property before the concerned authorities and that the application for regrant was rejected which is challenged before this Court in W.P. No.54265/2016. In that view of the matter, till the defendants establish that they have a right in respect of the written statement property, the defendants cannot sustain a claim for injunction on the ground that they are the owners of the written statement property and that they are in possession of the said property. 14. In that view of the matter, until the defendants establish their right over the written statement property, they cannot seek for any injunctive relief in respect of the said property. However, the defendants may renew their claim for the relief for perpetual injunction or any other relief against the plaintiff only after obtaining an order of regrant/grant of occupancy rights from the concerned authority. In that view of the matter, as no substantial question of law arises for consideration in this appeal, this appeal is dismissed.