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2023 DIGILAW 436 (KAR)

P Shantharama Saralya v. Vishwanatha Gatti

2023-03-14

H.P.SANDESH

body2023
JUDGMENT/ORDER 1. This matter is listed for admission. Heard the learned counsel appearing for the appellant. 2. This appeal is filed challenging the judgment and decree dtd. 24/6/2019 passed in R.A.No.166/2016 on the file of the Principal Senior Civil Judge and CJM, Mangaluru. 3. The factual matrix of the case of the plaintiff before the Trial Court is that he is the co-owner in possession and enjoyment of 1.08 acres of land in Sy.No.3/12 of Someshwara village, Mangaluru taluk. The total extent of said survey number is 1.65 acres which was originally acquired by the father of the plaintiff along with other properties by way of partition deed and father of the plaintiff died intestate leaving behind four sons and four daughters as his legal heirs. The plaintiff is in undisturbed possession of the schedule property as absolute owner without any hindrance from anybody. The revenue records such as RTC stood in the name of the plaintiff and he has been paying the assessment to the concerned authority. 4. It is further contended that the defendants have filed declaration suit in respect of Sy.No.33/12 along with other lands before the Land Tribunal in LRT No.222/79-80 and the Land Tribunal passed an order dtd. 29/8/1980 and granted the claim of the defendant in respect of schedule property. The defendant preferred an appeal against the order of the Tribunal in LRA(TT) 4172/86 and appellate authority passed an order dtd. 19/7/1989 confirming occupancy right to the extent of land as shown in the survey sketch. As per the measurement, the extent of granting of occupancy right in the said survey number that of 25 cents even though in the order, the extent is stated as 35 cents. As against the said order, the plaintiff and defendants have preferred revision before this Court which was dismissed on 9/11/1993 by confirming the order of the appellate authority. The plaintiff submits that out of total extent of 1.65 acres in the said survey number, 7 cents granted by the Land Tribunal to one Kotiappa Poojary, 25 cents gifted by the plaintiff to the school and 25 cents granted to the defendant and remaining extent of 1.08 acres is the schedule property which is in possession of the plaintiff. The plaintiff also contended that he used to take the green leaves from the schedule property to his agricultural property of paddy field, areca nut and coconut gardens. The plaintiff also contended that he used to take the green leaves from the schedule property to his agricultural property of paddy field, areca nut and coconut gardens. The defendants are not in cordial terms with the plaintiff since several years litigations were taken place between them. The defendants tried to interfere with the suit schedule property hence, the suit was filed. 5. In pursuance of suit summons, the defendants appeared and defendant No.1 filed his written statement. The very claim of the defendants is that they are in possession to the extent of 25 cents is not correct. The plaint is tracing the title of the plaintiff to the suit schedule property. The defendants denied that the plaintiff is the co-owner in possession and enjoyment of the suit schedule property and also denied all other averments made in the plaint. It is further contended that the appellate authority has passed an order confirming the occupancy right only to the extent of 35 cents in R.S.No.33/12. Eversince then and even prior to that, the defendants were in actual possession and enjoyment of 35 cents of land along with other properties and not 25 cents as contended by the plaintiff. It is also the claim of the defendants that the application was filed under Form No.7A for grant of plaint schedule property and other properties under the capacity of Valagenidhar. The said Muthamma died during the pendency of the proceedings before the Land Tribunal. Subsequently, the legal heirs of said Muthamma continued the proceedings before the Land Tribunal. The plaintiff totally suppressed the said facts. Therefore, the legal heirs of Muthamma are necessary party to the suit. Hence, the suit is not maintainable for non-joinder of necessary parties. 6. The Trial Court after considering both oral and documentary evidence placed on record answered all the issues as negative and dismissed the suit. Being aggrieved by the judgment and decree of the Trial Court, an appeal was filed before the First Appellate Court and the First Appellate Court also on considering the material available on record formulated the points in keeping the grounds urged in the appeal and also on re-appreciation of both oral and documentary evidence placed on record comes to the conclusion that the plaintiff has not proved the case to the extent of 1 acre 8 guntas and answered the point as negative and dismissed the appeal. Hence, the present appeal is filed before this Court. 7. The learned counsel appearing for the appellant would vehemently contend that both the Courts have committed an error in dismissing the suit and fails to take note of the fact that the occupancy right was granted as per the survey sketch which is a part of the order of the Land Tribunal and that aspect is clear from the recitals in the operative portion of the order of the Land Tribunal and also clear from the order of the Land Reforms Appellate Authority. The Land Reforms Appellate Authority in its order stated that the respondent shall be registered as an occupant in respect of 0.35 cents of land in Sy.No.33/12 which is shown as paddy field in pencil in the sketch of the Tribunal surveyor. The counsel also submits that it is clear that what is granted in favour of respondent No.1 is the area marked in the sketch in pencil shown as paddy field. The counsel also submits that said area is only to the extent of 25 cents and not 35 cents and though it is mentioned as 35 cents for the granted land factually granted for 25 cents and respondent No.1 is in possession of 25 cents in Sy.No.33/12. This has not been considered by both the Courts. Hence, the counsel would contend that both the Courts have committed an error in giving the findings against the sketch and the sketch will prevail over the boundaries and measurements mentioned in the deed. The counsel also submits that this Court has to frame the substantial question of law with regard to whether the both the Courts have erred in law in ignoring the measurement stated in the order of the Land Tribunal in the survey sketch as per Ex.P2 and as modified by the Land Reforms Appellate Authority as per Ex.P3 and hence, it requires interference of this Court. 8. 8. Having heard the counsel for the appellant and also on perusal of the material available on record, it discloses that the plaintiff has sought the relief of permanent injunction in respect of 1 acre 8 guntas and it is also the claim that he was the owner to the extent of 1.65 acres and out of that 7 cents granted by the Land Tribunal to one Kotiappa Poojary, 25 cents gifted by the plaintiff to the school, 25 cents granted to the defendants and remaining extent of 1.08 acres is the schedule property which is in the possession of the plaintiff. Having heard the counsel for the appellant it is not in dispute that an occupancy right was granted in favour of the defendants by the Land Tribunal and the same was modified by the Land Reforms Appellate Authority in coming to the conclusion that to the extent of 35 cents but the counsel would contend that the order is very clear that in terms of the sketch the defendant is in possession of 25 cents. But the fact is that the appellate tribunal made it clear that 35 cents as shown in the sketch in the pencil with regard to the paddy field. When the Appellate Tribunal set aside the order of the Land Tribunal and modified the order to the extent of 35 cents, the plaintiff cannot claim the injunction in respect of including of other 10 cents of land as it is only to the extent of 25 cents. The order of the First Appellate Court though challenged by filing revision before this Court and same was also dismissed. Hence, now, the plaintiff cannot contend that it is only 25 cents and not 35 cents. Both the Courts have also taken note of the material available on record and comes to the conclusion that the grant is made in favour of the defendant to the extent of 35 cents and Trial Court also in paragraph 13 extracted the cross-examination of PW1 with regard to the order passed by the Tribunal and also with regard to the question was put to whether he has taken back the remaining area of 10 cents and in detail discussed while answering issue No.1 and comes to the conclusion that the plaintiff has not proved the possession to the extent what was claimed to the extent of 1 acre 8 cents. The First Appellate Court also on re-appreciation of both oral and documentary evidence placed on record and having reassessed the evidence formulated the point with regard to the grounds urged in the appeal and also in paragraph 31 discussed in detail regarding the area that is total area and granting of 7 cents in favour of Kotiappa Poojary and also taken note of Ex.P24 and 25 cents gifted to school as evident from Ex.P27 and 35 cents granted to the defendant as contended and comes to the conclusion that the evidence which has been led before the Court and also considering the evidence of PW1, who is claiming that the land granted only 25 cents and also observed that the plaintiff has not chosen to examine the owners of the adjacent lands or localities to prove that he has been in possession and enjoyment of 1.08 acres of land in Sy.No.33/12. 9. Having considered the material available on record and considering the evidence of PW1 comes to the conclusion that the very contention of the plaintiff that the defendants are in possession of only to the extent of 25 cents and not 35 cents and the same has not been accepted and the First Appellate Court in paragraph 33 discussed in detail with regard to the dispute between the parties before the Land Tribunal as well as the Appellate Authority and also observed that grant was made to the extent of 35 cents in favour of the defendants not 25 cents as contended by the plaintiff and hence, dismissed the appeal. 10. Having considered both oral and documentary evidence placed on record and also the admission given by PW1 which has been extracted by the Trial Court while considering the material available on record particularly, in paragraph 13 in detail discussed the same and First Appellate Court also on re-appreciation of both oral and documentary evidence placed on record rightly comes to the conclusion that the plaintiff has not established the possession to the extent of 1 acre 8 cents. Hence, I do not find any error committed by both the Courts since the order of the appellate tribunal is very clear that to the extent of 35 cents in terms of the sketch. Thus, I do not find any grounds to invoke Sec. 100 of CPC to frame the substantial question of law and to admit the appeal. 11. Hence, I do not find any error committed by both the Courts since the order of the appellate tribunal is very clear that to the extent of 35 cents in terms of the sketch. Thus, I do not find any grounds to invoke Sec. 100 of CPC to frame the substantial question of law and to admit the appeal. 11. In view of the discussions made above, I pass the following: ORDER The appeal is dismissed.