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2025 DIGILAW 1731 (KAR)

Gangamma, D/O Ningaiah v. Gangamma, D/O Ningaiah

2025-12-09

ASHOK S.KINAGI

body2025
JUDGMENT : ASHOK S.KINAGI, J. This Regular Second Appeal is filed by the appellant challenging the judgment and decree dated 19.09.2014 passed in New R.A.No.154/2014 (Old R.A.No.2/2012) by the learned Fast Track Court, Channarayapatna. 2. For convenience, the parties are referred to, based on their rankings before the trial Court. The appellant was defendant No.2, respondent No.1 was plaintiff No.2, and respondent No.2 was defendant No.1. 3. Brief facts, leading rise to the filing of this appeal, are as follows: The plaintiffs filed a suit against the defendants for permanent injunction restraining the defendants from interfering with peaceful possession of the plaintiff regarding the suit schedule property. It is the case of the plaintiffs that, the suit schedule property was granted to plaintiff No.1 vide order dated 18.06.1982 by the Government. At the time of grant of the said land, the Tahasildar visited the suit property and confirmed the cultivation of the suit property by plaintiff No.1. Subsequently, the Taluka Surveyor visited the suit property, conducted a survey, and prepared the sketch indicating the possession of plaintiff No.1 over the suit schedule property. As per the grant certificate issued by the Tahasildar, plaintiff No.1 got changed the katha of the suit property into her name through M.R.No.1/1985-86. Thereafter, plaintiff No.1 has been in possession and enjoyment of the suit schedule property for last more than 30 years. It is contended that the defendants have no right, title or interest over the suit schedule property. As such defendant No.1 is unnecessarily trying to interfere with the plaintiffs' peaceful possession over the suit schedule property. The plaintiffs' requested defendant No.1 not to interfere with the plaintiffs' peaceful possession of the suit schedule property. The defendants did not give any heed to the request made by the plaintiffs. Hence, a cause of action arose for the plaintiffs to file a suit for permanent injunction. Accordingly, prays to decree the suit. 3.1. The defendants filed a written statement denying the averments made in the plaint, and it is also denied that the plaintiffs are the owners in possession of the suit schedule property. It is contended that the suit schedule property was granted in favour of defendant No.2 by the Government, and defendant No.2 is in possession and enjoyment of the suit schedule property from the date of the grant as an absolute owner. It is contended that the suit schedule property was granted in favour of defendant No.2 by the Government, and defendant No.2 is in possession and enjoyment of the suit schedule property from the date of the grant as an absolute owner. Defendant No.2 is a woman belongs to weaker section of the society, and defendant No.2 has taken the assistance of defendant No.1 to develop the suit schedule property. It is contended that the name of plaintiff No.1 resembles with the name of defendant No.2, taking advantage of the same, she has created the false story by concocting the documents, and has filed the suit against the defendants. All the revenue records pertaining to the suit land stands in the name of defendant No.2. It is contended that the plaintiffs have no right, title or possession over the suit scheduled property. Hence, prays to dismiss the suit. 3.2. The Trial Court, based on the above said pleadings, framed the following issues: 1) Whether the plaintiff proves that she is in possession and enjoyment of the suit schedule property? 2) Whether the plaintiff proves the alleged interference of the defendant? 3) Whether the plaintiff proves that she was the person granted the suit schedule property by the granting authority? 4) Does the 2 nd defendant prove that she was granted suit schedule property in her name by the granting committee and she is in possession of suit schedule property? 5) Whether the plaintiff entitled for the relief sought? 6) What order? 3.3. The plaintiffs, to substantiate their case, plaintiff Nos.1 and 2 were examined as PW.1 and PW.2, examined three witnesses as PW.3 to PW.5, and marked 22 documents as Exs.P1 to P22. In rebuttal, defendant No.2 was examined as DW.1, examined one witness as DW.2, and marked 13 documents as Exs.D1 to D13. 3.4. The Trial Court, after recording the evidence of the parties, hearing both sides, and after assessing the verbal and documentary evidence, answered issue Nos.1 to 3, and 5 in the negative, issue No.4 in the affirmative, and issue No.6 as per the final order. The suit of the plaintiffs was dismissed vide judgment dated 13.08.2010. 3.5. The plaintiffs, aggrieved by the judgment and decree passed in O.S.No.56/2000 preferred an appeal in R.A.No.154/2014 on the file of the Learned Fast Track Court, Channarayapatna. 3.6. The suit of the plaintiffs was dismissed vide judgment dated 13.08.2010. 3.5. The plaintiffs, aggrieved by the judgment and decree passed in O.S.No.56/2000 preferred an appeal in R.A.No.154/2014 on the file of the Learned Fast Track Court, Channarayapatna. 3.6. The First Appellate Court, after hearing the learned counsel for the parties, framed the following points for consideration: 1) Whether the appellants made out that the Trial Court has not properly understood the facts and also the documents produced by them and arrived a wrong conclusion, it called for interference by this Court? 2) Whether the appellants made out that they were in possession and enjoyment of the suit schedule property as on the date of suit and there was an interference by the respondents? 3) What order or decree? 3.7. The First Appellate Court, on hearing the parties and after re-appreciating the verbal and documentary evidence, answered point Nos.1 and 2 in the affirmative, and point No.3 as per the final order. The First Appellate Court allowed the appeal vide judgement dated 19.09.2014 and set aside the judgment and decree passed by the trial Court, and consequently, the suit of the plaintiff was decreed for permanent injunction. The defendants, their agents, servants or anybody claiming through them are hereby restrained from interfering with the plaintiffs' peaceful possession, and enjoyment of the suit schedule property. 3.8. Defendant No.2, aggrieved by the judgment and decree passed in R.A.No.154/2014, filed this Regular Second Appeal. 4. This Court, on 19.06.2019, admitted the appeal to consider the following substantial question of law: “Whether the trial Court applied the rule of evidence regarding primary and secondary evidence to appreciate the grant certificate produced by the plaintiffs and defendants?" 5. Heard the arguments of the learned counsel for defendant No.2, and also the learned counsel for the plaintiffs. 6. Learned counsel for defendant No.2 submits that the plaintiffs have failed to establish that they are in possession of the suit schedule property. He submits that the plaintiffs have not produced the alleged grant certificate alleged to have been granted in favour of plaintiff No.1. He also submits that the said suit property was granted in favour of the defendants and the defendants have produced the original grant certificate and based on the grant certificate, the revenue records stands in the name of defendant No.2. He also submits that the said suit property was granted in favour of the defendants and the defendants have produced the original grant certificate and based on the grant certificate, the revenue records stands in the name of defendant No.2. He submits that defendant No.2 being an old age lady, she has taken the assistance of defendant No.1 to cultivate the land. He submits that the First Appellate Court has reversed the judgment and decree of the trial Court only on the ground that the First Appellate Court directed the CMO to send the records produced by the plaintiffs to the revenue authorities, and the revenue authorities have submitted a report stating that the documents produced by the plaintiffs are genuine. He submits that the procedure adopted by the First Appellate Court referring the documents to the revenue authorities is illegal. He submits that though the First Appellate Court has recorded a finding that the plaintiffs ought to have filed a suit for declaration of title, however, the plaintiffs have filed a suit for injunction. He submits that when the defendants have denied the title of the plaintiffs then it is for the plaintiffs to file a suit for declaration of title and permanent injunction. 7. To buttress his arguments, he has placed reliance on the judgment of the Hon'ble Apex Court in the case of A NATHULA S UDHAKAR V S . P. B UCHI R EDDY ( DEAD B Y LEGAL REPRESENTATIVES AND OTHERS reported in AIR 2008 SC 2033 . Hence, the suit filed by the plaintiffs is not maintainable and the suit for mere injunction without seeking a relief of declaration is not maintainable. He also submits that PW.1 has clearly admitted the possession of the defendants in her cross-examination. The said admission is not properly appreciated by the First Appellate Court. He submits that the impugned judgment passed by the First Appellate Court is arbitrary, erroneous and contrary to the records. Hence, on these grounds, he prays to allow the appeal. 8. Per contra, learned counsel for the plaintiffs submits that the suit schedule property was granted in favour of plaintiff No.1 and to show that the said land was granted in favour of plaintiff No.1, he has produced the photo copy of the grant certificate and further, based on the grant certificate, the revenue records stands in the name of the plaintiffs. He also submits that the plaintiffs also examined four witnesses to prove the possession. The First Appellate Court was justified in reversing the judgment, and decree passed by the trial Court. He submits that the First Appellate Court has rightly drawn a presumption under Section 133 of the Karnataka Land Revenue Act, 1964, and held that the plaintiffs are in possession of the suit schedule property. He also submits that as of the date of alleged grant in favour of defendant No.1, defendant No.1 was minor. Hence, on these grounds, he prays to dismiss the appeal. 9. Perused the records, and considered the submissions of the learned counsel for the parties. 10. Reg. Substantial Question of Law: The plaintiffs filed a suit for permanent injunction. The plaintiffs, to substantiate their case, plaintiff No.1 was examined as PW.1. She has deposed that the suit schedule property was granted in favour of plaintiff No.1 i.e., PW.1 by the Government and a grant certificate was issued. Based on the grant certificate, the revenue records were transferred in the name of plaintiff No.1. She has deposed that the defendants have no right, title or possession over the suit schedule property. The plaintiffs are in possession and enjoyment of the suit schedule property for last more than 30 years. To prove that the suit schedule property was granted in favour of plaintiff No.1, plaintiff No.1 has produced the documents i.e., Ex.P1 is the RTC extract of land bearing Sy.No.88 standing in the name of Rangaswami, Ex.P2 is the RTC Extract of land bearing Sy.No.91, which stands in the name of Somashekar S/o Subbegowda and others to the extent of 1 acre 20 guntas and the same was entered in her name as per MR.No.12/1995-96, MR.No.45/1996-97 and MR. No.25/1998-99, Ex.P3 is a certified copy of the grant certificate, which discloses that the land was granted in favour of Gangamma, Ex.P4 is a certified copy of the application, Ex.P5 is the official memorandum issued by the Tahasildar, Channarayapatna Taluk dated 30.06.1982, which discloses that Sy.Nos.23, 24, 52, 68, 89 and 90 of Chowdenahalli Village, measuring 4 acres 5 guntas, 4 acres 20 guntas, 4 acres 8 guntas, 4 acres, 2 acres 13 guntas and 3 acres 39 guntas, were classified as assessed waste land and included in the availability list prepared for 1981-82, Ex.P6 is a certified copy of the Ledger Extract, which discloses that the properties were granted in favour of respective grantees, Ex.P7 is a certified copy of the sketch, Ex.P8 is a certified copy of the RTC Extract of land bearing Sy.No.90, which stands in the name of Gangamma, Ex.P9 is a certified copy of Vamsha Vruksha, Ex.P10 is the communication to police dated 28.08.2001, Ex.P11 identity card of the plaintiff, Ex.P12 is the genealogical tree, Ex.P13 is the tax paid receipt, Ex.P14 is a certified copy of the boundaries of the suit land Sy.No.90, Ex.P15 is a certified copy of Hiduvali certificate, Ex.P16 is the genealogical tree, Ex.P17 is the RTC extract for 2005-2006, Ex.P18 is a certified copy of the mutation register extract, Ex.P19 is the patta book, Ex.P20 is the tax paid receipt, Ex.P21 is the tax assessment and Ex.P22 is the building licence. 11. During the cross-examination of PW.1, PW.1 has clearly admitted that the defendants were in possession of the suit property and the plaintiffs requested the defendants for possession. Further, the plaintiffs also examined three witnesses as PW.3 to PW.5, who have deposed that the plaintiffs are in possession of the suit schedule property. PW.3 in his cross-examination has clearly admitted that he is a relative to the plaintiffs. 12. In rebuttal, defendant No.2 examined herself as DW.1. She reiterated the written statement averments in the examination-in-chief, and deposed that the suit schedule property was granted in favour of defendant No.1 and produced the original grant certificate marked as Ex.D13 and based on Ex.D13, the name of defendant No.1 was entered in the revenue records, and defendant No.1 is in possession and enjoyment of the suit schedule property and also produced the revenue records marked as Exs.D1 to D12. 13. 13. From the perusal of the entire evidence on record, the plaintiffs claims to be the owner of the suit schedule property based on the grant certificate marked as Ex.P3. The plaintiffs have not produced the original grant certificate to establish that the said land was granted in favour of plaintiff No.1. On the other hand, defendant No.1 has produced the original grant certificate marked as Ex.D13. During the course of arguments, learned counsel appearing for the plaintiffs has argued before the trial Court that defendant No.2 is in illegal custody of the original grant certificate. From the perusal of the plaint, the plaintiffs neither pleaded in the plaint nor in the examination-in-chief of PW.1 that the defendants have illegally taken the custody of the existing original grant certificate. The trial Court considering the evidence of PW.1 that, PW.1 has clearly admitted that the defendants were in possession of the suit schedule property and further, the defendants have denied the title of the plaintiffs over the suit schedule property has rightly passed the judgement. The plaintiffs ought to have filed a suit for relief of a declaration of title. On the contrary, the plaintiffs have filed a suit for mere injunction. The suit filed by the plaintiffs is contrary to the exposition of law laid down by the Hon'ble Apex Court in the case of A NATHULA S UDHAKAR (Supra). The trial Court considering the entire evidence on record and original grant certificate marked as Ex.D3, has rightly recorded a finding that the plaintiffs are not in possession of the suit schedule property, and there is a specific denial of the title of the plaintiffs over the suit schedule property. 14. The First Appellate Court, during the pendency of the appeal, directed the CMO to send the records i.e. Exs.P3 to P6 and Exs.D12 and P13 to the Tahsildar for holding an enquiry, and to submit the report to the Court. The Tahsildar has submitted a report, and the First Appellate Court placing reliance on the report submitted by Tahsildar, has recorded a finding that the documents produced by the plaintiffs is sufficient to hold that the plaintiffs are in possession of the suit schedule property. The Tahsildar has submitted a report, and the First Appellate Court placing reliance on the report submitted by Tahsildar, has recorded a finding that the documents produced by the plaintiffs is sufficient to hold that the plaintiffs are in possession of the suit schedule property. Further, the First Appellate Court has also recorded a finding that if there is a dispute regarding the title between the plaintiffs and defendant No.2, the plaintiffs could have filed a suit for declaration of title to declare the right title over the suit schedule property. Having recorded a finding that the plaintiffs ought to have filed a suit for declaration of title over the suit schedule property, however, has reversed the judgment and decree passed by the trial Court on the report submitted by the Tahsildar. The First Appellate Court has not provided any opportunity to the parties to put forth their explanation regarding the report submitted by the Tahsildar. The First Appellate Court committed an error in reversing the judgment and decree passed by the trial Court. The judgment and decree passed by the First Appellate Court is arbitrary and erroneous, and the same is liable to be set aside. In view of the above discussion, I answer substantial question of law in the affirmative. 15. Accordingly, I proceed to pass the following: ORDER i. The Regular Second Appeal is allowed. ii. The judgment and decree dated 19.09.2014 passed in R.A.No.154/2014 (Old R.A.No.2/2012) by the learned Fast Track Court, Channarayapatna is set aside. iii. The judgment and decree passed in O.SNo.56/2000 dated 13.08.2010 by the learned Principal Civil Judge and JMFC, Channarayapatna is restored. iv. No order as to the costs. v. A liberty is reserved to the plaintiffs to file a comprehensive suit, if so desired. vi. Pending applications, if any, stand disposed off accordingly.