Jagannatha Shetty, J.
1. This appeal has been preferred by defendant-1 against the judgment and decree dated June 14, 1972 made in O.S. No. 12 of 1968, on the file of the Principal Civil Judge, Bangalore District, Bangalore.
2. Briefly stated the facts are these :
A small plot of land measuring 1 aero 13 guntas in S. No. 139/2 described in the plaint as schedule 'A' is the subject matter of the litigation. It appears to be a valuable piece of land and perhaps the only asset of the plaintiff. It is situated near Koramangala Layout in Bangalore City. It lies adjacent to Bangalore-Hosur Road, the life-line between Bangalore and Madras. It is located amidst big factories, colleges, hospitals and residential buildings.
3.There is a triangular fight for the suit land. Plaintiff claims to be the owner in possession of that land and he traces his title as follows :
Dodda Annaiah Reddy and Chikka Annaiah Reddy were two of his predecessors. They were brothers. They were members of a Joint Hindu Family. Chikka Annaiah Reddy died leaving behind his son Pillappa. The family owned among other lands, S.No.139 of Kormangala village measuring 8 acres 23 guntas On March 4, 1920, there was a partition in the family between the two branches of family represented by Dodda Annaiah Reddy and Pillappa. That partition was evidenced by a registered deed Ex. P-8. In the said partition, northern half was allotted to pillappa's branch and southern half was allotted to Dodda Annaiah's branch. In 1943, there was a further partition in the branch of family of Dodda Annaiah. It is evidenced by Ex. P-7, dated March 15, 1943. One of the properties included in that partition was No. 139, measuring 4 acres 20 guntas. That was the very property allotted to that branch under Ex. P-8. Although the deed of partition Ex. P-7 recited that the properties of the branch family were equally divided among five sons of Dodda Annaiah, S, No. 139 measuring 4 acres 20 Gs. was, however, shared only by four of his sons. That is clear from the schedule of properties given to each of those four sons,
4. In 1937, for the first time, the Record of Rights and Survey Settlement were introduced. While preparing the survey settlement, two his as in S. No. 139 given to Dodda Annaiah and Pillappa were measured and the measurements were recorded in the Hissa Tippani and Atlas (Exs. P-l and P-2). Northern portion was given the Hissa No. 139/1 and southern portion was given the Hissa No. 139/2 and they were so recorded in Exs. P-l and P-2. It was found that S. No. 139/1 measured 3 acres 36 guntas and S. No. 139/2 measured 4 acres 27 guntas. But, due to inadvertence, the authorities in entering the names of the occupants of the sub-divisions apparently committed mistake. Pillappa was shown to be the occupant of S. No. 139/2 and Dodda Annaiah and his sons were shown to be the occupants of S. No. 139/1. This mistake was not noticed by the occupants or the authorities concerned and it remained and continued for years after years. Notwithstanding that mistake in revenue and survey records, the parties, however, continued to remain in possession and enjoyment of the area which really belonged to them.
5.The Karnataka (Personal and Miscellaneous) Inams Abolition Act, 1954 (called short as 'Inam Abolition Act') was brought into force. Under that Act all personal and miscellaneous inams were abolished and the inam lands stood vested in the State free from all encumbrances. The Act conferred right on parties to apply for registration of occupancy right before the Special Deputy Commissioner in respect of their holdings. So, the father of plaintiff applied for registration of occupancy right in respect of S.No, 1391/1 measuring 38 guntas. His other three brothers also claimed similar rights in respect of similar extents. The Special Deputy Commissioner registered all of them as 'Kadim' tenants in respect of the extents claimed by them. Gullamma, the widow of Pillappa, asked for registration of occupancy right in Survey No. 139/2 measuring 4 acres 21 guntas. Herrequest was also acceded to by the Special Deputy Commissioner registering her as 'Kadim' tenant.
6. On February 29, 1960 Gullamma, her children and grand-children joined together and purporting to sell the land in their possession executed the sale deed Ex. P-11 in regard to S. No. 139/2, measuring 4 acres 27 guntas. That sale was in favour of defendant-1. Three of the uncles of plaintiff also disposed of their holdings measuring 38 guntas each in favour of third parties who in turn transferred the same in favour of defendant-2. On June 18, 1959, the plaintiff's father sold 20 guntas of land out of his holding in favour of defendants 3 to 6. In all those sale deeds, the land sold has been described as S. No. 139/1 although it ought to have been S. No. 139/2. The remaining land according to the plaintiff is the land which is located in schedule 'A' and it measures 1 acre 13 guntas inclusive of 9guntas of kharab. As against defendant-1, the plaintiff has complained interference with his possession and enjoyment of schedule 'A' property..
With these averments, the plaintiff filed a suit for declaration that he is the owner of the land described in schedule 'A' that the existing entries in the index of land and other allied revenue records in respect of Hissa Nos. 1 and 2 of S.No.139 are incorrect and should be cancelled and correct entries should be made. The suit was also forinjunction restraining defendant-1 from interfering with schedule 'A' property and for awarding damages of Rs. 200/-. No relief, however has been claimed as against defendants-2 to 6. They have been impleaded only as proper parties since the plaintiff has sought correction of entries in the revenue records in regard to the lands in their possession also.
7. Defendant-1 is a limited Company. In the written statement, it has, inter alia contended that an extent of 31 guntas in schedule 'A' property belongs to it since it forms part of the land purchased by it from Gullamma under Ex.P-11, dated February 29, 1960. While denying ownership of the plaintiff and interference with his possession, even in regard to the remaining portion of schedule 'A' property, it has been contended that the plaintiff's suit was not maintainable in view of the provisions of Inams Abolition Act.
8. Defendant-2 is an institution running a Medical College and Hospital. This institution has claimed title to the entire schedule 'A' property on the ground that the State has acquired that land along with several other lands, in the neighborhood under the Land Acquisition Act for the purpose of the Institution and the possession was delivered to the Institution on January 20, 1962.
9. Defendants 3 to 6 have not filed any written statement. They remained experte.
Out of these pleadings, the Trial Court framed the following issues
(1) Whether the plaintiff proves his title to the suit property?
(2) Does the plaintiff prove his possession of the suit property on the date of the suit?
(3) Whether the entries in the Index of Land and Revenue Records about the survey number of the suit property are incorrect?
(4) Is the suit not maintainable?
The plaintiff has examined himself as P.W-2. He has examined Nagaraj Rao from Survey Department as P.W-1, besides two other witnesses P.Ws-3 and 4. Exs.P-1 to P-14 are the documents produced on behalf of the plaintiff. On behalf of defendant-1, Shivanna, the Supervisor, has been examined as D.W-1, Exs.D-1 to D-22 are the documents produced on behalf of defendants-1 and 2.
10. The Trial Court, upon consideration of the evidence produced by the parties, determined all the issues in favour of the plaintiff . It held :
(i) that the authorities while preparing the land revenue records ought to have entered S.No. 139/1 as against the name of Pillappa, since it was in his actual possession and S.No. 139/2 as against the name of Dodda Annaiah since it was in his exclusive enjoyment. But, by inadvertence or by mistake the authorities have inter-changed the names of the occupants;
(ii) Dodda Annaiah under the family partition was allotted a larger extent of S.No. 139, although the deed indicated that one half of S. No. 139 was allotted to his share. The reason for giving a larger extent of that land was there would be loss of crop in that portion since it was under the shade of roadside trees and also the owner of that land had to face nuisance of cattle and monkey menace;
(iii) defendant-I had in fact purchased the property in S,No. 139/1 which was in actual enjoyment of Gullamma and her children, although the sale deed recited that the land purchased was S No. 139/2 ;?
(iv) there is a clear demarcation between S.No. 139/1 and S.No. 139/2 and they are also separated by barbed wire fence put up along the ridges, and defendant-1 had no right to encroach schedule'A' property;
(v) The plaintiff's suit for declaration and correction of entries in the Record of Rights was maintainable ;
(vi) defendant-1 has caused damages to the plaintiff to the extent of Rs. 200/-
As against defendant-2, the Court observed :
(i) That the State Government acquired the property including the property under schedule 'A' for the benefit of defendent-2 and, therefore, strictly speaking the plaintiff would not be entitled to the declaration that he is the owner of schedule 'A' property as the ownership vested in defendant-2; and
(ii) there could, however, be no bar for the Court to grant reliefs since the plaintiff was not at all aware of the acquisition of schedule 'A' property and no notice of acquisition was served on the interested parties.
With these findings, the Trial Court decreed the suit declaring the plaintiff as the owner of schedule 'A' property. The Court also issued a permanent injunction against defendant-1 restraining it from interfering with the plaintiffs possession of that property while awarding Rs. 200/- as-damages to the plaintiff for the damage caused by defendant-1. The Court further issued a direction to the revenue authorities to correct the entries in the revenue records in regard to the respective holdings of the parties.
Being aggrieved by the Judgment, defendant-1 alone has preferred this appeal.
In this appeal, we may refer to the parties in their array in the Trial Court.
11. Mr. Iyengar, Learned Counsel for defendant-1, has a three fold submission. His first contention relates to ownership of schedule 'A' property The second submission relates to its possession by defendant-1 and the third as to maintainability of the suit. Mr.D'Souza, Learned Counsel for defendant-2, has a limited attack. He takes shelter only under the acquisition proceedings taken by the State Government. He contended that schedule 'A' property was acquired followed by delivery of possession to defendant-2 and the Government has no power to withdraw the acquisition in respect of any portion of schedule 'A' land.
Mr. P. Raghavendra Rao, Learned Counsel for the plaintiff, without being petulant, assiduously argued his ease mostly on facts culled out from various documents.
12. In the light of these submissions and on the consideration of material on record, the following points arise for our consideration :
(i) Whether the entries in the Index of Land and the Revenue Records in regard to Hissa number of Survey No. 139 are incorrect?
(ii) Does the plaintiff prove his possession of Schedule 'A' property?
(iii) Whether the suit is maintainable and if so, whether title to schedule 'A' property could be declared in favour of the plaintiff? and
(iv) Whether the State had taken possession of any part of schedule ' A' property pursuant to the proceedings taken under the LandAcquisition Act?
13. We will take up the last contention first for consideration. It is concerned only with defendant-2. It is not in dispute that the Government acquired land in several survey numbers for the benefit of defendant2. Suit schedule 'A' property was one of those lands in respect of which the acquisition proceedings were taken. On June 27, 1961 the preliminary notification under Section 4(0 of the Land Acquisition Act was issued proposing acquisition of certain extent of land in S. No. 139/1. It has not been produced in this case and, therefore, one does not know the exact extent of land in S. No. 139/1 proposed for acquisition. There is however, an agreement entered into by defendant-2 with the State Government for the purpose of acquisition of lands and in that agreement an extent of 20 guntas in S. No. 139/1 was suggested for acquisition. On December 27, 1961 the final notification (Ex. D-22) was issued declaring that one acre in S. No. 139/1 was needed for the public purpose. On February 11, 1980 the Government issued a notification withdrawing the acquisition in respect of Survey No. 139/1 to the extent of one acre. The last notification was issued during the pendency of this appeal. It was contended for defendant-2 that the Government has no jurisdiction to issue that notification since the land in question was already taken possession by the authorities and the possession was also delivered to defendant-2.
Under Section 48(1) of the Land Acquisition Act, the power of the Government to withdraw the acquisition in respect of any land sought to be acquired is not in dispute. But that power has to be exercised before taking possession of the land. The critical question, therefore, is whether the State Government has not taken possession of schedule 'A' property before issuing notification dated February 11, 1980. Since the acquisition was withdrawn during the pendency of this appeal, this Court called for a finding from the Trial Court on the following issue:
'Whether the State Government has taken possession of the suit schedule property or any part thereof pursuant to the notification of acquisition issued under the Land Acquisition Act; and, if so, on what date and from whom ?'
The Trial Court after recording evidence from the parties, has determined that issue in the negative. It has submitted its finding on January 23, 1984. On September 11, 1985 defendant-2 has filed a memorandum of objection againt the said finding.
14. It is now necessary to consider the correctness of the finding recorded by the Trial Court on the above issue. In the Court below, defendant-2 has examined the then Land Acquisition Officer - Puttanarasaiah - as D.W-2 and the Revenue Inspector - Narasimha Reddy-as D. W-3. D.W-3 has stated that after the award was made, the possession of schedule 'A'land was taken by D. W-3 at the direction of D.W-2. Xerox copies of the letter (Ex.D 24) the panchanama (Ex.D-15) and the report (Ex.D-14) have been got marked to show that the possession of the land under acquisition was taken. The learned Civil Judge has, after taking into consideration of the evidence of D.W-2, and D. W. 3 held that the evidence regarding taking the possession of the land was far from satisfactory. In reaching that conclusion he has observed that although under the final notification (Ex.D-22), one acre of land in S.No. 139/1 was acquired, under Ex.P-15, D.W-3 seems to have taken possession of only 20 guntas in S.No. 139/1. No explanation, however, has been offered as to why only an 'extent of 20 guntas was taken when one acre was purported to have been acquired. Ex.P.-15 also does not indicate any demarcation of the portion of 20 guntas taken possession. Theowner of the land has not signed the panchanama.
The conclusion of the Trial Court that there is no acceptable evidence to prove thefacture of taking possession of 20 guntas out of S. No. 130/1 is, in our opinion,justified for more than one reason. One is bewildered as to how D.W-3 could take possession of 20 guntas when the final notification declared that one acre in S. No. 139/1 was needed for the public purpose. Secondly, neither the Panchanama Ex.P-15, nor the oral evidence of D.W-3 makes any mention of the definite portion measuring 20 guntas of land taken possession out of S.No. 139/1. There is no plan of the land proposed to be acquired, nor a scretch of the portion of the land taken delivery of. The evidence of D.W-3 does not inspire any confidence. There was a lot of contusion as to the survey number and the extent of land sought to be acquired. A copy of the letter accompanying the notification withdrawing the acquisition would also go to show that there was confusion as to the survey number and the extent of land sought to be acquired In such a confusion, coupled with the imprecise writing ot Panchanama Ex.P-15, we cannot give credence to thetestimony of D.W-2 and D.W-3. We, therefore, agree with the finding of the Court below holding that there is no evidence to prove that the authorities have taken possession of the land under schedule 'A' betore the issuance of the notification dated February 11, 1980 withdrawing the acquisition.
15. Re : Point No. (i) : Whether the entries in the Index of Land and tne revenue records in regard to Hissa numbers of S.No. 139 are incorrect We must begin the discussion on this question with the family partition Ex. P-8 dated March 4, 1920 entered into between Dodda Annaiah and Pillappa. In that partition it may be noted that Pillappa was allotted the northern portion of S.No. 139 and Dodda Anuaiah was allottedthe southern portion of that purvey number. Though the partition deed mentioned that equal extents were allotted to two branches, on actual measurements, it was proved to be otherwise. Nagaraja Rao (P.W-1) who belongs to the Survey Department gives us the correct extents of the shares allotted to them. The land was measured, perhaps, for the first time in 1937, when the survey settlement was introduced in that year. Records of measurement are found in the Pakka Book. Ex.P-1 contains the actual measurements to the scale and Ex. P-2 is the rough sketch prepared by the Survey Department. P.W-1 says:
'l see the original pucca book. S. No. 139/1 is to the north of Hissa No. 2 in S. No. 139. Tippani contains actual measurements and is to scale. Atlas is rough sketch.
3. S. No. 139/1 measures 3 acres 36 guntas with P. K. 4 guntas. So the net cultivable area was 3 acres 32 guntas. Its assessment then was Rs. 6/-. S. No. 139/2 measured 4 acres 27 guntas with 6 guntas P. K. So 4 acres 21 guntas was net cultivable area. The assessment then was Rs. 7-8-0.'
It will be seen from the above statement that S.No. 139/1 is to the north of S.No. 139/2 and that the northern portion measures 3 acres 36 guntas. It will be evident from the evidence of this witness that the northern portion of S.No. 139 - whatever may be the Hissa number given - measures only 3 acres 36 guntas as against the southern portion of the said survey number which measures 4 acres 27 guntas.
16. It may be recalled that under the family partition deed Ex. P-8, the northern portion was allotted to Pillappa and the southern portion was allotted to Dodda Annaiah. This remains beyond doubt and indeed none disputed before us. Besides, an elderly person in the family - Ramaiah Reddy (P.W-3) gives the reasons for such division. While referring to the partition deed Ex.P-8, he states :
'___Pillappa got the northern half of this S. No. and my father got the southern half of this S. No....The Northern portion allotted to Piilappa is slightly less than the southern portion that had fallen to my father's share. It was because there would not be good crop on account of the shade of trees in Sarjapur Road and Hosur Road....'
17. It now becomes clear that Pillappa's share in the northern portion of S. No. 139 measures only 3 acres 36guntas, while Dodda Annaiah's share in the southern portion of that land measures 4 acres 27 guntas. But unfortunately, the officials while entering the names of occupants of northern and southern portions of the land seem to have forgotten this, That could be seen from Ex.P-5 which is an extract of the revenue records, and Ex.P-6, the Index of Land. In both these records, Dodda Annaiah has been shown to be in possession of S. No. 139/1 and Pillappa was shown to be in possession of S. No. 139/2. The irony is that this mistake continued over the years in all subsequent documents prepared and transactions effected by the parties, perhaps, unconsciously.
Ex. P-11 dated February 29, 1960 is the sale deed under which Gullamma and her children purported to sell the property bearing S. No. 139/2 measuring 4 acres 21 guntas in favour of defendant-1. But the schedule given in that sale deed in respect of the land sold is as follows :
'East : By cart track leading Koramangala
West : By Hosur Road ;
North : By S. No. 138 belonging to international
Intrumemts Pvt. Ltd.; and
South : By land belonging to Chikkamuniswamy, the father of plaintiff.'
The deed Ex.P-11 was accompanied by the plan Ex,P-l1 (a) indicating the extent of land sold. In the plan, the land sold has been marked with the litters 'ABCD' and demarcated in red. If we examine this plan, the land demarcated in red colour appears to be smaller in extent than the land which is immediately below to it i.e., to the south of it. The measurements given in the demarcated portion under Ex.P-11 (a) are as follows:
'Northern side : 993 ft.
Southern side : 922 ft.
Eastern side : 185 ft. 6 inches
Western side : 251 ft.
We could easily work out the area enclosed by these measurements and if we do so, it comes to 3 acres 35.6 guntas (rounded off to 36 guntas). This has been by and large corroborated by the statement of Shivanna (D.W-1) who has at one stage categorically stated that the extent of the area marked 'ABCD' in Ex.-P-11(a) is 3 acres 32 guntas. Of course, 32 guntas appears to be a mistake, but it ought to be 36 guntas. Perhaps, D.W-1 excluded the phot kharab of 4 guntas while mentioning 32 guntas.
Again it would be pertinent to note the southern boundaries mentioned in Ex. P-11. The southern boundary indicated therein was the land belonging to the father of plaintiff. Obviously it means that the land sold to defend-ant-1 was to the north of the land of the plaintiff.
If the plaintiff's land was to the north of the land sold to defendant-1, Pillappa being shown as the owner of the land S. No. 139/2 would be apparently wrong, because his land was the northern portion of S. No. 139 and it ought to be S.No. 139/1.
18. It was, however, urged for the appellant that during the survey it was actually found that Dodda Annaiah was shown to be the person in possession of S.No. 139/1 and Pillappa was in possession of S.No. 139/2 and that was the evidence given by Nagaraja Rao (P.W-l). In order to avoid confusion, we may briefly refer to that portion of the evidence of P.W-l. He states :
'At the time of the survey one Dodda Annayya is shown to be the person in possession of Sy. No. 139/1. S. No. 139/2 was in possession of Pillayya s/o Chikkanniah.'
We do not think that this evidence of P.W-l would suggest that Dodda Annaiah was found to be in actual possession of S.No. 139/1 and Pillappa was in actualenjoyment of S.No. 139/2. In the first place, any such evidence could not have been given by P.W-l, since he was notthe officer who conducted the survey and settlement. The witness was speaking only with reference to the records maintained by the Survey Department. His statement suggests that at the time of survey, Dodda Annaiah was shown to be the person in possession of S.No. 139/1 and Pillappa was shown to be in possession of S.No. 139/2. While stating so, he only refers to the entries made at the time of survey and nothing more. Secondly, the family partition under Ex. P-8 was in 1920 and the first survey and settlement was in the year 1937. It is not the case of any-body that during the period between 1920 to 1937, the two branches of Dodda Annaiah and Pillappa had ex-changed the portions of S.No. 139 allotted to them under the family partition.
19.The measurements taken during the survey and settlement in regard to S.No. 139/1 and S.No. 139/2 have been correctly noted in Ex.P-5 which is the extract of record of rights and in Ex.P 6 which is the extract of index of land. But while so recording the measurements of the respective divisions, the names of occupants of the divisions have been interchanged. Instead of entering the name of Dodda Annaiah as against S.No. 139/2, Pillappa's name has been entered, and as against S.No. 139/1 in respect of which Pillappa's name ought to have been entered, Dodda Annaiah's name has been entered. But this error, however, has had little effect on their respective portions of the land as given to their branches under the partition deed Ex.P 8. Their rights thereto remained unimpaired and their possession continued uninterrupted. As between the two branches of the family there was no dispute at any time either as to the extent or the boundaries of their shares. It was only recently, defendant-1, the purchaser of the share of Gullamma, wanted to take advantage of the error in naming the occupants of the two his as of S.No. 139.
20.Re: Point No. (ii) : Does the plaintiff prove his possession of schedule 'A' property? On this aspect of the matter, we may first adumbrate the transactions by which defendants have purchased different portions of S.No. 139 and we could then apply the process of elimination to find out the exact extent of schedule 'A' property.
We have earlier held that the northern portion of S. No.139 which went to the share of Pillappa measures 3 acres 36 guntas and the southern portion which went to the share of Dodda Annaiah measures 4 acres 27 guntas. Pillappa's share which was in the exclusive possession of Gullamma and her children was sold to defendant-1. Ex. P-ll(a) is the map attached to the sale deed. One cannot say that the map attached to the deed of sale was not a part of the deed. In K.S.Nanji and Co., -v. - V. Jatashankar Dossa and Others : [1962]1SCR492 the Supreme Court observed that where the map is drawn to scale and the boundary is clearly demarcated, the Courts would be right in accepting the boundaries drawn in the map without embarking upon an attempt to correct them with reference to the revenue records. It was also observed that the map referred to in such a deed should be treated as incorporated in the deed as forming part of the deed. Shivanna (D.W-1) cannot, therefore, be heard to contend that what was purchased under Ex. P-11 was quite different from what it has been described in Ex. P-11(a). It is true that the recitals in the sale deed are to the effect that S.No. 139/2 measuring 4 acres 27 guntas was sold to defen-dant-1. But the measurement of the land was blindly copied in view of the wrong names of occupants given in the revenue records. It seems to us that every person appears to have approached the Special Deputy Commissioner for registration of occupancy right relying on the entries in the record of revenue rights, but each of them got the occupancy right of the land in his exclusive possession. The same mistake has been carried even in the sale deed Ex.P-11 executed by Gullamma. But the boundaries mentioned in that sale deed about the land sold and the extent of the land sold as per the map Ex. P-ll(a) attached to the sale deed would unmistakably suggest that the land sold by Gullamma to defendant-1 was in fact S.No. 139/1 measuring 3 acres 36 guntas and not S.No. 139/2 measuring 4 acres 27 guntas. The evidence of Shivanna (D.W-1) also confirms our conclusion. Shivanna (D.W.-l) has stated that the area marked 'ABCD' in Ex. P-11(a) corresponds with the area marked 'ABCD' in the plaint sketch Ex. P-4
The entire S.No. 139 measures 8 acres 23 guntas. If an extent of 3 acres 36 guntas is excluded as having been sold under Ex.P-11, there then remains the balance of 4 acres 27 guntas. That appears to be the area which came to the share of Dodda Annaiah under the family partition deed. That was again the subject matter of partition in the branch family of Dodda Annaiah and his sons. In that partition, there were several properties brought to thehotchpots. But so far as the land in S. No. 139 was concerned, it was divided only among the four sons of Dodda Annaiah. It is not in dispute that the three of his sons each took 38 guntas in respect of which they were registered as occupants as 'Kadim' tenants by the Special Deputy Commissioner. Later they sold their lands to some third parties who in turn transferred the same to defendant-2. Defendant-2 thus became the owner in possession of 2 acres 34 guntas out of S. No. 139. The remaining portion of the land, however, continued with the plaintiff's father. It was 1 acre 33 guntas. Out of this 1 acre 33 guntas, the plaintiff's father sold 20 guntas under Ex.P-10 to defendants 3 to 6 whose possession remains undisputed. There then remains 1 acre 13 guntas. That could be only schedule 'A' to the plaint whetheron a likes it or not . The plaintiff claims this land as his own. Hisclaim appears to be logitimate and we have so good reason to discard it.
21. But it was urged for defendants 1 and 2 that there is no evidence to show that in the branch family partition under Ex.P-7 dated March 15, 1943, the plaintiff's father got more than the other sons of Dodda Annaiah. It may be that in the partition deed, there is no reference to the actual extent of land allotted to each of the four sons of Dodda Annaiah. But the evidence of plaintiff (P.W-2) and his uncle Ramaiah Reddy (P.W-3) supports the contention of the plaintiff that his father was allotted read side land and larger in extent to compensate the inherent disadvantages it had. It had the disadvantage of cattle trespass and nuisance by monkeys. Its yield was stated to be less on account of the shade of road side trees. P.W-3 states :
'......My elder brother Chikkamuniswamy was given a greater share in this Survey number, because there would not be good crops under the shade of trees and because there would be nuisance on account of cattle trespass and monkeys.....'
There is no challenge to this evidence by cross examination from defendants 1 and 2 and we have, therefore, no reason to disbelieve it.
The other three sons of Dodda Annaiah also do not claim anything more than 38 guntas. Nor there is any complaint or grievance by any one of the defendants that the plaintiff has encroached their portion. The case of defendant-2 was that schedule 'A' land was one of the lands acquired by the State Government. So far as defendant-1 is concerned, it has come on record that after purchasing the property from Gullamma, defendant-1 constructed a big factory and put up a fence enclosing the entire area by barbed wire in 3 or 4 parallel lines supported by stone pillars. The barbed wire fence was on the naturaldemarcating 'Badha' running east to west with the creepers and plants spreading over it. The trouble started onlywhen defendants wanted to encroach a parties of the schedule 'A' land beyond the barbed wire fence and that was the cause of action for the plaintiff to institute the suit for declaration and injunction. Immediately on filing the suit, the Court has issued a temporary injunction to protect the plaintiff's possession of schedule 'A' land and thattemporary injunction was allowed to operate till the suit was decreed with issuance of permanent injunction against the defendants. The plaintiff, in our judgment, has proved his exclusive possession of schedule 'A' land measuring 1 acre 13 guntas.
The evidence of Shivanna (D.W-1) almost corroborates the outline plan Ex.P-4. He has stated :
'..............There is a cement line shown as D, D1 and C, C1 in Ex. P-4. To the south of line El. C is the land belonging to the 2nd defendant. El. C.M.L. is the area that belongs to 2nd defendant. The area E1-C ML includes the area belonging to the uncle of the plaintiff. The area shown as HGLK in Ex. P-4 represent the area sold by the plaintiffs, father to MBT Company for installing the petrol Bunk. To the west of the 1st defendant property and the plaintiff property is Bangalore - Hosur road. To the south of the land belonging to defendants 2 to 6 is Bangalore-Sarjupur Road. On the southern edge of the cement drain marked DC in Ex. P-4 there was a barbed wire fence......'
D.W.I, however, wanted to assert that the southern boundary of the land purchased by defendant-1 was not the barbed wire fence, but we have already held that the land purchased by defendant-1 under Ex. P11 measures only 3 acres 36 guntas and it covers the entire portion marked under 'ABCD' in Ex. P-4 which also corresponds to the portion marked 'ABCD' in Ex. P-ll(a).
It may be as contended for the appellant that the plaintiff was not able to produce assessment receipts evidencing payment of assessment for schedule 'A' property. He was also not aware whether his father had paid any such assessment, but undue importance need not be given for not producing such assessment receipts. Theassessment receipt may be one of the circumstances evidencing possession, but not conclusive either way. It is not like a rent receipt indicating the possession of premises by a tenant. The schedule 'A' is a vacant piece of land and perhaps, remained uncultivated for many years. There is no claim to this land by other members of the plaintiff's family. None of his relations in the branch family of Pillappa has claimed any portion of it. There is no evidence of Gullamma that she was in possession of a portion of Schedule 'A' and it formed part of the land sold by her to defendant-1. The mere assertion of Shivanna (D.W-1) that it was purchased from Gullamma cannot take him too far, particularly when he has practically admitted the broad outline of Ex. P-4. That means, the land purchased by defendant-1 has been enclosed by fixing stone pillars with barbed wire fence along the line marked 'PQ'in Ex. P-4. The Trial Court is, therefore, justified in reaching the conclusion that the plaintiff is in exclusive possession of schedule 'A' land.
22. Re : Point No. (iii) : The question herein is, whether the suit is maintainable and, if so, whether title to schedule 'A' property could be declared in favour of the plaintiff? The contention as to the maintainability of the suit is rested on the provisions of the Inams Abolition Act. Counsel for the appellant urged that whatever be thereal extent of land in possession of the parties prior to the coming into force of the Inams Abolition Act, it has no relevance after the inams were abolished and the lands vested in the State Government. The Special Deputy Commissioner, who is a statutory authority constituted under the Inams Abolition Act granted occupancy rights in respect of the specified lands to different parties and his order would be final and binding on all parties and Courts. In view of the provisions of Sections 28 and 31(3) of theInams Abolition Act, the Civil Court has no jurisdiction to go behind such orders - so ran the contention.
23. The Inams Abolition Act is a special enactment. The question as to what extent the jurisdiction of the Civil Court is taken away with respect to matters entrusted to Tribunal constituted under the special enactment has been the subject-matter of a number of decisions. There are several tests to be applied for determining the exclusion of jurisdiction of the Civil Court, In Dhulabhai v.. State of Madhya Pradesh & Another, AIR 1979 SC 78 the Supreme Court has indicated some of the principles. One of the principles stated therein, which is relevant for our case is :
'Where the statute gives a finality to the orders of the specialtribunals the Civil Courts' jurisdiction must be held to be excluded if there is adequate remedy to do what the Civil Court would normally do in a suit. Such provision, however, does not exclude those cases where the provisions of the particular Act have not been complied with or the statutory tribunal has not acted in conformity with the fundamental principles of judicial procedure.'
In the case on hand there is no grievance from the parties that the provisions of the Inanas Abolition Act have not been complied with by the Special Deputy Commissioner while granting occupancy rights. Nor there is any com-plaint as to the violation of fundamental principles of judicial procedure. The only question to be considered is whether the Inams Abolition Act attaches finality to the orders of the Special Deputy Commissioner, and if so, what would be the effect of such finality on the generaljurisdiction of Civil Court.
24. To consider this part of the question, we may briefly refer to the relevant provisions of the Inams Abolition Act. Upon the notification issued by the State Government in exercise of the powers conferred under Section 1(4), inams would stand abolished and by Section 3(l)(b), the lands in inam villages would vest absolutely in the State.
Section 4 provides for registration of 'Kadim' tenants. It confers rights on every 'Kadim' tenant of the inamdar to be registered as an occupant in respect of the land which immediately before the date of vesting was properly included in his holding.
Section 10 provides for determination of claims of the applicants seeking registration of occupancy rights.
Section 10-A provides that after the determination of claims under Section 10, the Tribunal shall send the prescribed particulars of the decision to the officermaintaining the record of rights under the Karnataka Land Record of Rights Act, 1958.
Section 10-A(2) states that the Officer concerned shall enter such particulars in the registers maintained under the Karnataka Land Record of Rights Act, 1958.
Section 28 provides for appeal from orders orders Section 10. So far as it is relevant, it provides :
'......any person aggrieved by such decision may, within thirty days from the said date, appeal to the prescribed authority and the decision of the prescribed authority shall be final.'
Section 31 deals with the powers of the High Court, and sub-section (3) thereof reads :
'Save as otherwise provided in this Act, no order passed by the Deputy Commissioner or by the Special Tribunal under this Act shall be liable to be cancelled or modified except by the High Court as aforesaid or to be questioned in any Court of law.'
To sum up : After the inams were abolished and the lands vested in the State Government, the only right preserved to the parties is to apply for registration of occupancy rights either as 'Kadim' tenant, permanent tenant or other tenants recognised under the law. When such applications are made, the Special Deputy Commissioner,who is the statutory authority constituted under the Inams Abolition Act, is required to make an enquiry and grant relief. His order is appealable under Section 28 to the Karnataka Revenue Appellate Tribunal and the decision of the Tribunal becomes final. Section 31(3) states that no order passed by the Deputy Commissioner or Tribunal shall be liable to be cancelled or modified except by the High Court under Section 31. The jurisdiction of the High Court under Section 31 is, however, limited and confined only to orders determining compensation except those referred to in Section 28.
25. It is thus seen that the Inams Abolition Act attaches finality to the orders granting registration of occupancy rights. What does it mean Is it not an implied exclusion of the jurisdiction of Civil Courts Is not the Inams Abolition Act a complete Code by itself Does it not provide machinery for adjudicating the rights of parties with appellate forum to correct the errors of the adjudicating authority If that is so, could Civil Courts still exercise general jurisdiction over the same dispute. Had the Legislature intended to provide dual remedies to parties or intended to establish two authorities to determine the same question We think not. The grant of occupancy right as 'Kadim' tenant, permanent tenant or any other tenant is within the exclusive jurisdiction of the special authority constituted under the Inams Abolition Act which is a special enactment. Its order is appealable to the prescribed authority and it then becomes final. It is, therefore, legitimate to infer that by reason of the provisions of Section 28 read with Section 31(3) of the Inams Abolition Act, the adjudication as to registration of occupancy right in respect of the land which immediately before the date of vesting was properly included in the holding of the applicant becomes final and conclusive. The Civil Court has no jurisdiction to reopen that matter.
26. We need not labour the point further. This Court in Rangappa -v.- Chinnappaiah 1965(1) KLJ 145 while referring to the earlier decision in Kempamma -v.- Kempanna 1964(2) KLJ 444 has taken a similar view. There it was observed :
'So, it becomes clear that the very provision for an adjudication by the Deputy Commissioner under Section 10 and for an appeal from his adjudication under sub-section (1) of Section 28, are by themselves more than sufficient to support the view that that adjudication should be made only in manner provided by the Act and only by those tribunals entrusted with the power to make that adjudication and by no other. If, in addition sub-section (I) of Section 28 adds that the decision of the prescribed authority in appeal shall be final, the inference deducible from the fact that there is a complete machinery provided by the Act for the adjudication of a claim that the Civil Courts shall not exercisejurisdiction for such adjudication stands reinforced.'
27. That, however, does not mean that the plaintiff's suit for declaration of title and consequential rectification of entries in the record of rights is not maintainable. Mr. Raghavendra Rao for the plaintiff is, in our opinion, justified in contending that such a suit is maintainable and it is one of the remedies provided under the Karnataka Land Revenue Act, 1964.
So far as it is relevant, Section 135 of the Karnataka Land Revenue Act provides :
'Provided that if any person is aggrieved as to any right of which he is in possession, by an entry made in the record of register maintained under this Chapter, he may institute a suit against any person denying or interested to deny his title to such right, for a declaration of his right under Chapter VI of the Specific Relief Act, 1877; and the entry in the record or register shall be amended in accordance with any suchdeclaration.'
In this case,the plaintiff has been able to establish that all the parties including himself got the registration of occupancy rights as Kadim tenants in respect of lands in their respective holdings, but under a wrong Hissa number of S. No. 139. That mistake was perpetuated even in the order made by the Special Deputy Commissioner, because there were no disputes before him and there were no rival claims. Each was under the apparent belief that he got the registration of occupancy right in respect of his own holding. It was only when defendant-l was trying to interfere with the rights of the plaintiff in regard to schedule 'A' land, the necessity to file the suit for declaration and correction of, entries in the record of rights arose. The plaintiff's suit is therefore, maintainable under the proviso to Section 135 of the Karnataka Land Revenue Act.
28. That takes us to the nature of the relief to be granted to the plaintiff. The suit is for declaration of title in respect of schedule 'A' property measuring 1 acre 13 guntas. The plaintiff was registered as an occupant by the Special Deputy Commissioner under Section 4 of the Inams Abolition Act in regard to an extent of 38 guntas in his holding. His absolute title for 38 guntas cannot, therefore, be doubted or denied. But there still remains 15 guntas in schedule 'A' in respect of which the Special Deputy Commissioner was not called upon to grant occupancy right. The plaintiff, however, has been in exclusive possession of the entire land in schedule 'A' Since he is in possession and enjoyment of schedule 'A' land, there could be no impediment to declare his 'possessory title' for the said extent of 15 guntas. A similar relief was granted by the Judicial Committee in Ismail Ariff -v.- Mahomed Ghouse (1893) 20 IA 99(PC) the principle of which has been quoted with approval by the Supreme Court in Somnath Berman -v.- Dr. S. P. Raju & another : [1970]2SCR869 . The Supreme Court observed:
'...Possessory title is a good title as against everybody other than the lawful owner. In Ismail Ariff-v.- Mahomed Ghouse (1893) 20 1nd App. 99 (PC), the Judicial Committee came to the conclusion that a person having possessory title can get a declaration that he was the owner of the land in suit and an injunction restraining the defendant from interfering with his possession. Therein, it was observed that thepossession of the plaintiff was a sufficient evidence of title as owner against the defendant-'
Therefore, it is more appropriate to declare that the plaintiff is lawfully entitled to possession of the land in excess of 38 guntas in S. No. 139/2. This possessory title is good title as against all except the true owner. He is entitled to remain in possession free from interference fromdefendants 1&2. So far as 38 guntas in S.No. 139/2 is concerned, he may be declared as absolute owner thereof. The decree of the Trial Court is required to be modified accordingly in regard to plaintiff's title to schedule 'A' property.
29. Before we part with the case, we must deal with the last contention urged for the appellant. Mr. Iyengar urged that the decree for damages awarded to the extent of Rs. 200/- against defendant-1 is unsustainable since there is no evidence to support it. The contention appears to be fairly justified. We do not know on what basis the Trial Court has directed defendant-1 to pay Rs. 200/- as damages to the plaintiff. There is no proof as to the damages caused though thefactor of interference by defendant-1 with the Schedule 'A' property has been established. The decree of the Trial Court awarding damages of Rs. 200/- in favour of the plaintiff is, therefore, unsustainable.
30. In the result, the appeal is allowed in part, the judgment and decree of the Trial Court awarding damages against defendant-1 are set aside, and the judgment and decree in all other respects subject to the observation and modification made, are kept undisturbed.
ORDER ON ORAL S.C.L.A.P. OF 1985
Counsel for the appellant seeks a certificate for appeal to the Supremo Court.
We do not think the case involves any substantial question of law of general importance which needs to be decided by the Supreme Court
The certificate prayed for, therefore, is refused.