| SooperKanoon Citation | sooperkanoon.com/1144181 |
| Court | Karnataka High Court |
| Decided On | Feb-03-2014 |
| Case Number | R.F.A. No. 2307 of 2006 |
| Judge | A V. CHANDRASHEXARA |
this appeal coming for final hearing on this day, court delivered the following:-
1. This is an appeal filed by the plaintiff of O.S. No. 112/2001 under Section 96 challenging the judgment and decree passed on 24.08.2006 by the learned First Additional Senior Civil Judge, Eadami. Suit of the plaintiffs for the relief of declaration of title and permanent injunction has been dismissed by considered judgment dated 24.08.2006. Respondents herein are the defendant nos.l to 7 in the trial Court. Parties will be referred to as the plaintiff and defendants as per their ranking given in the trial Court.
2. Property over which the main relief of declaration of title has been sought by the plaintiff is an agricultural land measuring 3.08 acres in sy. No. 161 of Cholachagudd village of Badami Taluk, Bagalkot District. According to the plaintiff, property in question is stated to be the ancestral property of plaintiff and defendant nos.2 to 7 and is situated in the vicinity of Banashankari Temple of Cholachagudd village of Badami Taluk. Every year a fair will be held during the period 'Yellu Amavasya". Normally jatra will be held during January or February according to the English calendar. According to the plaintiff though the property in question is an agricultural land, the same is being used for non-agricultural purposes at the time of said jatra as thousands of devotees assemble around the temple. During the period of jatra temporary sheds will be installed by businessmen and in this regard plaintiff and defendant nos.2 to 7 have been seeking permission from the revenue department to use the same for non-agricultural purposes during the said period of jatra. It is their assertion that the land in question has never been an Inam land but a land owned by themselves and their ancestors from days immemorial. Since the name of the Government came to be entered in the reenue records vide Mutation Entry No. 2054 dated 11.11.1978 an application was filed for deleting the same. The application was dismissed holding that the land in question is an inam land. Against the said order, a writ petition was filed in W.P, No. 17789/1997 before this Court and the same was allowed. Against the said order in the Writ Petition, the Panchayath chose to file an appeal before the High Court in W,A. No. 7156/1999 and the said writ appeal was disposed of giving libeity to the plaintiff to agitate his claim to establish his ownership by filing a suit before the competent Civil Court. Accordingly, plaintiff chose to file a regular civil suit seeking the main relief of declaration of title to the effect that plaintiff and defendant nos. 2 to 7 are the absolute owners and that they are in lawful possession of the same, hence the ancillary relief of permanent injunction has also been sought.
3. The first defendant alone resisted the suit on various grounds. The main plea of the first defendant is that the land in question is an Inam land coming within the purview of Karnataka Certain Inam Abolition Act, 1977 and that Mutation Entry has been lawfully made by the revenue authorities and that the same is a valid entry. According to the first defendant, the land in question has vested in the Government on coming into force of Karnataka Certain Inam Abolition Act, 1977 and that plaintiff has not filed any application seekingoccupancyright, before the Land Tribunal and therefore the suit itself is not maintainable either in law or on facts. It is further averred that the suit is specifically barred by time in view of mutation entry dated 11.11.1978 has been challenged at highly belated stage, i.e., on 21.04.2001. With these pleadings the first defendant had requested the trial Court to dismiss the suit.
4. On the basis of the above pleadings the following issues have been framed:
1) Whether the plaintiff proves that, he and defendant No.2 to 7 are the owners of the suit land?
2) Whether the plaintiff proves that, he and the defendant No. 2 to 7 are in possession and enjoyment of the suit land as on the date of suit?
3) Whether the defendant No.l proves that, the suit land is "Devasthan Inam Land" and vest with Government under the Karnataka Certain Inam Abolition Act, 1977?
4) Whether the plaintiff and defendant No.2 to 7 are entitled for declaration and permaneni injunction as prayed?
5) To what order or decree?
5. Shankar Bhat, the plaintiff has been examined as P.W.I and two witnesses have been examined on his behalf. 40 exhibits have been got marked on behalf of the plaintiff. On behalf of defendant no.l, the Tahasildar and the Secretary of Panchayath have been examined as D,W. 1 and D.W.2. Four exhibits have been got marked.
6. After hearing the arguments and perusing the records the learned Civil Judge has answered issue nos.l to 4 in the negative and consequently the suit is dismissed by a considered judgment. It is this judgment and decree which is called in question in this appeal filed u/S 96 CPC on several grounds.
7. It is contended that the trial Court has not properly appreciated oral and documentary evidence in right perspective and that the evidence so recorded has not been tested on the basis of intrinsic probabilities. The Trial Court is stated to have adopted a wrong approach to the real state of affairs by misreading the entries found in the revenue records. It is further contended that the words 'Sarkara' and 'Sarkari' have been misunderstood and misinterpreted by the trial Court and that the trial Court has ignored certain material documents which unequivocally indicate that the land in sy. No. 161 was not an Inam land at any point of time. It is the further case of the appellant, as putforth before this Court is that uninterrupted entries found in the revenue records indicating the name of plaintiff and defendant nos.2 to 7 and their predecessor have not been given due credence and that the statutory presumption available u/S 133 of the Karnataka Land Revenue aci, 1964 has not been drawn. It is contended that the trial Court has come to the conclusion that the land in question is a Inam land without there being any basis. The judgment and decree of the trial Court is stated to be opposed to law, facts and probabilities.
8. Per contra Sri Anand Navalgimath, learned Government Advocate has vehemently argued contending that the trial Court has properly analyzed the oral and documentary evidence more particularly when the land in question is a land endowed to Banashankari Devasthana deity, more particularly situated in the vicinity of the temple. It is further argued that permission was being given to the plaintiffs during jatra period cannot be considered as admitting their right It is further contended that the permission so accorded by the Government was in recognition of his role as a priest of the deity and not as the absolute owner of the land in question. It is further contended that the trial Court has adopted right approach to the real state of affairs and that the trial Court has analyzed the entire evidence in right perspective to dismiss the suit. Hence prayed this Court to dismiss the appeal with exemplary costs.
9. After going through the records and after hearing the arguments from learned counsel appearing for the parties the following points have arisen for the consideration of this Court.
1) Whether the trial Court is justified in coming to the conclusion that the land in question is an inam land and that the plaintiff and defendant nos.2 to 7 have no manner of right, title or interest over the schedule property?
2) Whether the trial Court is justified in coming to the conclusion that the plaintiffs and defendant rios.2 to 7 are not in possession of the suit schedule property either on the date of the suit or at any point prior to the filing of the suit?
3) Whether any interference is called for by this Court and if so, to what extent?
REASONS
11. On going through the records, it appears to this Court that the plaintiff has had been agitating about the absolute title that he and defendant nos.2 to 7 have in respect of the suit schedule property. Ex.P.3 is a statutory notice got issued by the appellant through his counsel on 30.01.2000 as contemplated u/S 80 CPC. Ex.P.l is the record of right, geni and pahani pairike issued by the revenue authorities for the year 2000-2001 in respect of sy. No. 161 measuring 3.08 guntas. Names of the plaintiff and defendant nos.2 to 7 have been bracketed and name of the Government is mentioned in mutation entry no. 2054. This does not have much importance as the plaintiff has made an application seeking deletion of the said name. Since the name was rejected, he was before the Civil Court seeking independent title irrespective of tue entries made by the revenue authorities.
12. Ex.P.4 is a copy of the challan submitted to State Bank of India, Badami, by the plaintiff on 14.08.1981 paying in all Rs.528.14 being the land rent in the light of the land in sy. No. 161 being used for non agricultural purposes during jatra period. Ex.P.5 is one such document dated 16.03.1982 evidencing payment of Rs.67.25 as land rent in order to permit several persons to put up shops during jatra period. Ex.P.6 to 22 are similar documents evidencing payment of amount as land rent for using the entire extent of land in sy. nO. 161 for commercial purposes during jatra period right from 1983 upto 1999.
13. What is argued before this Court by the learned counsel appearing for the first respondent is that these exhibits cannot be considered as documents evidencing the ownership of plaintiff and defendant nos.2 to 7 but they clearly indicate the ownership of the Government in respect of land in sy. No. 161 and according permission to plaintiff who is a priest of the said temple is only to use the same for commercial purposes during jatra period as a source of revenue for him. This Court is unable to accept the said limb of argument advanced on behalf of the first respondent herein. The documents marked as Ex.P.4 to 22 specifically indicate that the land in question was being used for non agricultural purposes, that is for putting up commercial business shops during jatra period cn payment of 00.04 paise as rent per square yard.
14. If anybody were to use the agricultural land for non-agricultural purposes, permission is required. Since temporary permission was sought to use this land during jatra period the plaintiff being the person in possession of this agricultural land more particularly being the priest of the said temple was making application and the payment was being accepted by the Government every year.
15. This is not the only circumstance which indicates about the ownership of the land in question by P.W.I. Ex.P.24 is the land revenue record indicating the name of the predecessors of the plaintiff and defendant nos,2 to 7 as persons in possession during the year 1929-30 to 1939-40. The nature of possession held by the predecessors of plaintiff and defendant nos.2 to 7 is mentioned as "Swanta" (own). If the land in question had been really held by the plaintiff and defendant nos.2 to 7 as tenants or by the predecessors as tenants, their name would have been mentioned as tenants, more particularly in the said column the word "lavani" (tenancy) is also forthcoming. Ex.P.25 is another document indicating the name of the predecessors of plaintiff and defendant nos.2 to 7 for the years 1940- 41 upto 1952-53. There also the column ear marked for possession is shown as 'own' (swanta). Ex.P.26 is another document issued for the years 1953-54 to 1961-62. There also in column no.2, the nature of possession is mentioned as 'swania'. Then we have the record of rights, geni and pahani pat?ikes (R.T.C s) of this land bearing sy. No. 161 measuring 3.08 acres issued for the years 1964-65 to 1993-94. Names of the predecessors of the plaintiff and defendant no.2 are found in column no. 9 and 10 of the RTC and the nature of possession held as per column no. 12 (2) of this document is marked as "swanta".
16. Ex.P.32 and 33 are the revenue documents issued in form no. 4 for the years 1944-45 and 1965 and 1978 respectively. Mutation entry no. 562 dated 30.04.1944 in Ex.P.32 discloses that Eshwara Bhat son of Kallambhat Pujar died on 30.03.1944 and his only brother Raj as war Prakash Malhar Bhat became the khatadar. In respect of M.E. No.580 dated 27.01.1945, it is mentioned that on 3 1.1944 Martanda Bhat Soma Bhat Pujar died and his sons Shankar Bbat, Chidambar bhat, Murthy Bhat and their mother Venko Bai haye became the legal heirs.
17. M.E. No. 594 dated 20.09.1945 indicates that on 20.05.1945 Shankar Bhat Vital Bhat Pujar died. He was unmarried and therefore his brothers Malhar Bhat and Bheema Bhat Pujar became the khatadars.
18. Similarly M.E. No. 1668 dated 22.02.1969 disclose that on 22.01.1969 Vital Bhat Pujai died and his brothers and sons Vital, Gangadhar, Shankar Bhat and Harini Bhat and other children became khatadars M.E. No, 2057 dated 06.11.1978 disclose that Bheema BhatVital Bbat died on 26.10.1978 and his children Anand, Aravind and daughters became the khatadars. These entries in 580, 594, 2057 pertain to land in sy. No. 161. Similarly, M.E. No. 723 dated 01.09.1988 also discloses that Soma Bhat Pujar died on 16.04.1988 and his two sons became the khatadars. This is in respect of sy. No. 161 and other connected survey numbers. M.E. No.259 dated 31.05.1933 relating to sy. No. 161 discloses that Soma Bhat Digambar Bhat died on 25.05.1933 and his son Marthand Bhat Soma Bhat became the khadatar. Similarly, M.E. No.634 dated 29.06.1939 disclose that in respect of sy. No. 161 and 170 that Vital Bhat Bheem Bhat died on 19.05.1939 and his elder son of Sbankar Bhat and other brothers became the khatadars.
19. Ex.P.34 is ar» endorsement issued by the jurisdictional Tahasildar of Badami on 13.06 2005 about the various extent of lands held as inam lands pertaining to the said temple. The said endorsement does not disclose that land in sy. No. 161 as an inam land. On the other hand land in sy. No. 159, 60, 160, 164, 165, 166, 168, 179, 172, 212 and 221 are indicated as inam lands. This endorsement is issued on the basis of Inam Register maintained in Register no. 3 for the year 1916-1917. Ex.P.35 is an endorsement specifically issued on 13.06.2005 by the Tahasildar, Badami stating that the land in sy. No. 159, 160, 164, 165 and 166 are the Devasthan Inam lands but sy. No. 161 is also included in the said endorsement but does not depict sy. No. 161, as Devastan Inam land. It is an admitted fact that any agricultural land assessed to revenue held by any individual, willalways be showr as 'sarkari'. The word 'sarkari' found as against sy. No. 161 in Ex.P.35 has been considered as a Government land by the trial Court. The said word 'sarkari' has been misinterpreted without looking to the incorporation of Devasthan Inam land in respect of 5 items in sy. No. ] 59, 160, 164, 165 and 166.
20. One Yellappa who has been examined as P.W.2 was also keeping shops during Jatra period and he was paying some amount to Banashankari Devasthan Archak Sangh, Cholachagudd. This indicates that he was paying rent of the shops put up by him during jatra period to P.W.I only. Per contra first defendant has relied upon Ex.D.l to 4.Eif.D.l and 2 are the tax paid receipts and Ex.D.3 and 4 are the proceedings of the books maintained by the Village Panchayath. Admittedly the land in question does not belong to the Gram Panchayat. What is contended by the learned counsel for the first defendant is that the land in question is a Government land and therefore the land being attached to the temple, it has vested with the Government as no application is filed u/S 11 of the Karnataka Inam Abolition Act, 1977. It is argued that when the application seeking occupancy rights is not filed by the plaintiff under the provisions of Inam Abolition Act before the Land Tribunal, the land has vested in the Government. But the records do not even remotely indicate that land in sy. No. 161 is an inam land.
21. Only after the tenanted land vests in the Government, the occupancy rights could be conferred. In the present case there is overwhelming documentary evidence in regard to the incorporation of the names of the predecessors of plaintiff and defendant nos.2 to 7 in the revenue records indicating the nature of possession both in column no. 9 and 12(2) of the RTC. If the land had been the inam land endowed to deity Banashankari, name of Banashankari deity would have been found in colum no. 9 ear marked for depicting name of the owner. If the land in question had been held by the plaintiff and defendant nos.2 to 7 or their predecessors as tenants or in any other capacity connected with the deity, their names would not have been shown as 'owner' in column no. 12(2) of the R T.C. uninterruptedly.
22. The Karnataka Land Revenue Act, 1964 came into force from 1964. Even after coming into force of the said Act, names of the predecessors of plaintiff and defendant nos.2 to 7 had been entered right from 1964-65 tc 1993-94. Even prior to that, names of predecessors of plaintiff and defendantnos.2 to 7 had been found in the revenue records issued by the first defendant itself.
23. A Bench considering 3 Hon'ble judges of the Hon'ble Supreme Court way back in 1966 as reported inAIR 1966 SC 605 Ambika Prasad Thakur and Others Vs. Ram Ekbal Rai (dead) by his legal representatives and others,has specifically held that, if a thing or a state of things is shown to exist, an inference of the continuity within a reasonably proximate time both for wards and backwards may sometimes be drawn. The presumption of future continuance is noticed in Illustration (d) to S. 114 of the Indian Evidence Act, 1872. The said presumption of future continuance is noticed. According to the said decision, illustration 'd' to Sec. 114 of the Evidence Act is relevant. Paragraph no. 15 of the decision rendered in the above case is very much relevant to this case and the same is extracted below.
(15) The survey records of 1892, 1895, 1904 and 1909 disclose that the ancestors of the plaintiffs held some of the frontier plots of Dubha Mai. The High Court was, therefore, asked to draw the inference that their ancestors held those plots during 1845 to 1863 when the taufir lands accreted. The question is whether such on inference should be drawn. Now, if a thing or a state of things is shown to exist, an inference of the continuity within a' reasonably proximate time both for wards and backwards may sometimes be drawn. The presumption of future continuance is noticed in Illustration (d) to S. 114 of the Indian Evidence Act, 1872. In appropriate cases, an inference of the continuity of a thing or state of things backwards may be drawn under this section, though on this point the section does not give a separate illustration. The rule that the presumption of continuance may operate retrospectively has been recognised both in India, see Anangamanjari Chowdhraniv. Tripura Soondari Chowdhrani, 14 Ind Appellant 101 at p. 110 (PC), ana England, see Bristowv.Cormican (1878) 3 Appellate Court 641 at pp. 669, 670, Doev.Young (1845) 8 QB 63; 115 ER 798. The broad observation in Manmatha Nathv.Girish Chandra Roy, 38 Cal WN 763 at p. 770; (AIR 1934 Cal 707 at p. 708) and Hemendra Nathv.Jnanendra Prasanna, 40 Cal WN 115 at p. 117: (AIR 1935 Cal 702 at p. 704) that there is no rule of evidence by which one can presume the continuity of things backwards cannot be supported. The presumption of continuity weakens with the passage of time. How far the presumption may be drawn both backwards and forwards depends upon the nature of the thing and the 'surrounding circumstances. In the present case the High Court rightly refused to draw the inference from the state of things during 1892 to 1909 that the ancestors of the plaintiffs held froniter plots of Dubha Mai in 1863. The High Court pointed out that even during 1894 to 1905 the ownership of some of the plots had changed and also that the froutiner. Mai plots and the corresponding Taufir plots were not always held by the same person. In 1845, part of the Mai lands was under water. The frontier Mai lands reformed between 1845 to 1863 were subject to annual inundation. It is well known that settlements of Char lands are seasonal and temporary. There is considerable gap of time between 1892 and 1845. It is not safe to assume that the state of things during 1894 to 1905 existed during 1845 to 1863."
24. Learned trial Judge lias failed to look into these facts found in the documentary evidence placed on record by the plaintiff indicating name of plaintiff and defendant nos.2 to 7 in revenue records and the names of their predecessors in the same records at an undisputed point of time. Therefore, incorporation of the name of Government by virtue of an entry in 1978 will not take away the effect of continuous entries found earlier in the revenue records. The cumulative effect of all these entries and endorsement have not been looked into by the learned trial Judge in right perspective. Therefore, the entries made in 1978 incorporating name of the Government will have no much consequence. Even otherwise, incorporation of an entry will not have cause of action, since the actual threat to absolute right will be the denial of the title of the plaintiff and therefore the plaintiff chose to file a comprehensive suit in the year 2001.
25. In a decision reported in2010 (2) SCC 194 Daya Singh and Another Vs. Gurudev Singh (dead) by legal representatives and others,the Hon'ble Supreme Court has specifically held that mere adverse entry in revenue records will not give rise to cause of action. It is further held that right to sue accrues when there is a clear threat to infringe a right. This decision has been rendered by the Supreme Court while discussing the provisions of Article 58 of the Limitation Act. As per the facts of the said case compromise had been entered into between the parties in 1972 for disposal of the suit property and revenue entries had been wrongly entered contrary to the compromise decree and they were discovered for the first time by the plaintiffs in 1990 and hence suit filed in the year 1990 for the reliefs of declaration of title and injunction was not considered as time barred. Reiterating the principles enunciated inAIR 1961 SC 808 C. Mohammad Yunus V. Syed Unnissathe decision inDay a Singh's casehas been rendered. The said decision has been followed with all vigor by the Supreme Court.
26. Plaintiff has been examined as P.W.i. He has reiterated the contents of the plaint in his examination in chief. Though he has been cross examined at length by the learned counsel for the first defendant, nothing useful has been culled out from his mouth to discredit his deposition or to probablize the defence even remotely. All material suggestion put to him on the basis of the defence taken up by the first defendant in its written statement have been emphatically denied.
27. In fact, Rudragouda, examined as D.W.I was the jurisdictional Tahasildar. He was examined on 08.08.2006. To a specific question put to him during the course of cross-examination, he has deposed that "he cannot depose with authority as to whether the land in question belongs to the Government". He has admitted that permission shall be accorded to put up shops during jatra period. He has further admitted that land rent will be collected from the shop owners through panchayath. He has further admitted that in Ex.D.l and Ex.D.2 nothing is mentioned about on the collection of taxes in respect of shops put up in sy. No. 161. He has admitted that basis for incorporation of the entries in revenue records will be mentioned. He has pleaded ignorance as to whether the documents have been produced on behalf of the first defendant to demonstrate that the land in question is an Inam land. Ex.P.27 was specifically confronted to him to draw his attention to know as to whether the same was given to the plaintiff by the Taluk Office. He has admitted the said suggestion and has further admitted that land in sy. No. 161 is not mentioned as Inam land in Ex.P.27 or 28 to 31. He has further admitted that he has no document to show that land in question is an inam land and it has vested with the Government.
28. Suffice to state that the evidence of D.W.I is not helpful to the Government and on the other hand many admissions have been culled out from his mouth which probabalise case of the plaintiff. The cumulative effect of the deposition of the witnesses of the defendant no.l and certain admissions culled out from the mouth of D.W.I is that the land in question is a land belonging to family of the plaintiff and defendant nos.2 to 7 and they have been exercising their right from several decades. The learned Judge of the trial Court is more persuaded by the incorporation of the word 'sarkari' in the revenue document pertaining to sy. No. 161 and the learned trial Judge has not taken into consideration the other uninterrupted entries indicating name of the predecessors of the plaintiff and defendant nos.2 to 7 and their assertion of title by making application to the Government for using the same for non-agricultural purposes during jatra period.
29. The learned Judge of the trial Court has not properly marshalled the facts and therefore wrong approach to the real state of affairs has been adopted overwhelming the evidence placed on record by the plaintiff has not been tested on the touch stone of intrinsic probabilities.
30. As already discussed, the learned Judge has not discussed about the effect of the continuous entries found in revenue records keeping in mind the mandate of illustration'd' to Sec. 114 of the Evidence Act as held by the Hon'ble Supreme CourtAmbika Prasad Thakurcase referred to supra.
31. On re-appreciation of entire evidence, this Court is of the considered opinion that the plaintiff and defendant nos.2 to 7 have been able to effectively demonstrate that the land in question bearing sy. No. 161 of Cholachagudd village is a land absolutely belonging to plaintiff and defendant nos.2 to 7 and they are the absolute owners. Plaintiff has discharged the initial burden effectively and onus which had shifted as the first defendant is not properly discharged. Hence point no.l is answered in the negative.
32. Point 2. Possession always follows title. The continuous entries depicting ownership of the precedessors of the plaintiff and defendant nos.2 to 7 and the incorporation of the name of the plaintiff in the revenue records up to 1978 and the assertion of title by making application to the Government for granting permission to let the properties on rent during jatra period would go 10 show that plaintiff is in lawful possession of the suit property as owner. The overt acts done by the plaintiff m the form of seeking permission during the jatra period to let out land for putting up shops is also a strong circumstance. If the land in question was really an inam land endowed to deity Banashankary and if the land in question had really vested in the Government, question of according permission to plaintiff on receipt of some money as land rent would not have arisen. Taking into consideration the overall circumstances of the case, it can be said with certainty that the trial Court has not analyzed the evidence in right perspective and it has missed very important links in the case. Hence this Court, on re-assessment of entire evidence, has to hold that plaintiff and defendant nos.2 to 7 have been in lawful
possession and enjoyment of the schedule property as absolute owners. Hence point no.2 is answered in the negative.
33. Point 3: In view of the finding on point nos.l and 2 the appeal will have to be allowed in entirety by decreeing the suit. Hence absolute interference is called for in this case.
ORDER
Appeal filed u./S 96 CPC challenging the judgment and decree passed in O.S. No.i 12/01 which was pending on the file of the Additional Senior Civil Judge, Bagalkot is allowed in its entirety. Consequently the suit in O.S. No. 112/2001 is decreed declaring plaintiff and defendant nos.2 to 7 are the absolute owners in possession of the schedule property bearing sy. No. 161 of Cholachagudd village. Consequently defendant no.l is restrained from interfering with the peaceful possession and enjoyment of the suit schedule property by way of permanent injunction. Taking into consideration the nature of litigation, there is no order as to costs.