IN THE COURT OF THE ADDL. CIVIL JUDGE (JR. DIV) & J.M.F.C., AT DEVANAHALLI
PRESENT
SRI. CHANDRASHEKAR.C. B.A.L, LL.M.
Addl. Civil Judge (Jr. Div) & JMFC,
Devanahalli
O.S. No.88/2007
PLAINTIFF: Smt. Mangala Babu Dhammanagi
Vs.
DEFENDANT`S Srinivas Murthy K.
COMMON ORDERS ON I.A. I & II
1. The Plaintiff has filed I.A. No.1 U/o 39 rules 1 and 2 of CPC, seeking an order of injunction restraining the defendant, his agents, servants or any body claiming through or under him from interfering with her peaceful possession and enjoyment of the suit schedule property.
2. In the annexed affidavit, plaintiff has stated on oath that she is the absolute owner and in possession of the suit schedule property measuring 4 acres 30 guntas in Sy.No.3/257 (old Sy.No.3) situated at Navaratna Agrahara, Jala Hobli, Bangalore North Taluk. She has purchased the said property under registered sale deed dated 10.11.2005 from the previous owner in possession namely, Smt. H.B. Usha Basavaraj, Katha and pahani are made out in her name by virtue of the proceedings in M.R. No.30/2005-06. Originally Sy.No.3 comprised of 187 acres 3 guntas which belonged to the defendant’s father Kempaiah. There was a family settlement in their family and by virtue of the registered settlement deed dated 30.07.1953, the above property was given to the defendant and his brother K. Shamaiah. Defendant who had got 100 acres with the above settlement deed had sold excess land in the said survey number and therefore he has no right, title much less possession in any part of the land in Sy.No.3. Even his brother had sold the entire 87 acres of land which has fallen to his share to various persons under different deeds. Subsequent claim made by the defendant in respect of land in Sy.No.3 is rejected by revenue authorities, since he had failed to produce all documentary evidence to prove that he has got land in Sy.No.3. Order passed by the Special Deputy Commissioner on 31.10.2002 is clear that defendant never had any right, title much less possession over any part of the land in Sy. No.3 of Navaratna Agrahara village. However, defendant is trying to unlawfully interfere with the suit schedule property belonging to the plaintiff which was the part of the land owned and sold by defendant’s brother K. Shamaiah. She has put up a compound wall around her property and also put a gate. On 27.02.2007 defendant along with some rowdies tried to damage the compound wall with an intention to invade and trespass into the schedule property. She is having prima facie case and balance of convenience lies in her favour. In case an order of temporary injunction is not granted she will be put to irreparable loss and injury which cannot be compensated by any means. Wherefore, it is prayed to allow the application.
3. The defendant has adopted his written statement as objections to the above application. It is his case that a civil suit in respect of Inam land is not maintainable and this court has no jurisdiction to try the suit. His father late Kempaiah, the then Jodidhar of Navaratna Agrahara village, had purchased 905 acres of land from one Krishnaswamy Iyangar including land measuring 187 acres 38 guntas in Sy.No.3 with prior permission of the Deputy Commissioner. There was a family settlement in their family on 30.07.1953 and in the said settlement, 87 acres 37 guntas was given to his share and the remaining 100 acres on the western side of Sy.No.3 was given to the share of his brother Shamaiah. Occupancy rights have been granted in favour of the 64 persons including himself by the Land Tribunal, Devanahalli and by virtue of orders dated 20.09.1982 in case No. LRF (INA) 272/1980-81.By virtue of the said order occupancy rights to an extent of 21 acres in Sy.No.3 of Navaratna Agrahara village, he is in actual possession and cultivating the same. He has disputed not only the possession and enjoyment of the plaintiff over the suit schedule property, but also has disputed the sale deeds in the name of the plaintiff and also her vendors. It is his case that as on 10.12.1956 the land vested with the Government and the purchasers from his brother had not acquired any title. Out of the 21 acres allotted to him by the Land Tribunal, he has sold land measuring 19 acres 8 guntas which were assigned Sy.No. 118 and 126 and now in possession of 1 acre 30 guntas which is assigned Sy.No. 3/125. The survey authorities during the year 2006 have visited the spot and fixed the boundaries to the extent of 1 acre 30 guntas and at that point of time notices were issued to the neighbors, including Smt. Usha Basavaraj. Since the codes of the plaintiff had no marketable, valid or legal title over the suit schedule property, she had not acquired any valid title and more over the said property is non-existent. Documents produced by him clearly shows that he is in possession and enjoyment of 1 acre 30 guntas in Sy.No.3/125 and he has prayed to reject the plaintiff’s application.
4. I.A. No.II is filed by the defendant U/s 39 rules 1 and 2 of CPC seeking an order of temporary injunction restraining the plaintiff, her agents, legal representatives, servants etc, or any person claiming through her from interfering with his peaceful possession and enjoyment of the defendant’s property pending disposal of the suit.
5. In the annexed affidavit, defendant has stated on oath that he is in possession and enjoyment of the land measuring 1 acre 30 guntas in Sy. No. 3/125 bounded on East by Sy.No.126 belonging to R.S. Patil, West by Sy. No.97, North by Ilathoor Gaddi and South by Sy. No.2 and road to Bovipalya. It is his case that a suit in respect of Inam land is not maintainable and this court has no jurisdiction to try the suit. His father late Kempaiah the then Jodidhar of Navaratna Agrahara village, had purchased 905 acres of land from one Krishnaswamy Iyangar including land measuring 187 acres 38 guntas in Sy.No.3 with prior permission of the Deputy Commissioner. There was a family settlement in their family on 30.07.1953 and in the said settlement 87 acres 37 guntas was given to his share and the remaining 100 acres on the western side of Sy.No.3 was given to the share of his brother Shamaiah. The Land Tribunal, Devanahalli had by virtue of orders dated 20.09.1982 in case No. LRF (INA) 272/1980-81, conferred occupancy rights to an extent of 21 acres in Sy. No.3 of Navaratna Agrahara village and pursuant to the order he is in actual possession and cultivating the same. He has disputed not only the possession and enjoyment of the plaintiff over the suit schedule property, but also has disputed the sale deeds in the name of the plaintiff and also her vendors. It is his case that as on 10.12.1956 the land vested with the Government and the purchasers from his brother had not acquired any title. Out of the 21 acres allotted to him by the Land Tribunal, he has sold land measuring 19 acres 8 guntas, which were assigned in Sy. No. 118 and 126 and now in possession of 1 acre 30 guntas which is assigned as Sy.No.3/125. The survey authorities during the year 2006 have visited the spot and fixed the boundaries to the extent of 1 acre 30 guntas and at that point of time notices were issued to the neighbors including Smt. Usha Basavaraj. Since the vendors of the plaintiff had no marketable and valid or legal title over the suit schedule property, plaintiff has not acquired any valid title and more over the said property is not in existence. Documents produced by him clearly shows that he is in possession and enjoyment of 1 acre 30 guntas in Sy.No.3/125. He is having prima facie case and balance of convenience lies in his favour. In case an order of temporary injunction is not granted he will be put to irreparable loss and injury. Wherefore, it is prayed to allow the application.
6. Plaintiff has filed objections to the above application disputing the defendant’s case. Defendant has not produced the alleged sale deed dated 18.02.1943 or for that matter settlement deed dated 30.07.1958 or the Government Notification dated 15.09.1956 under which he claims that Sy.No.3 vested with the Government. Defendant has sworn to false affidavit and guilty of perjury and it is filed only in order to mislead the court. He is not in possession or in occupation or cultivation of any part of the land in Sy.No.3, because he has sold all his entire land by registered sale deeds dated 04.11.1957 and 13.09.1982 and has suppressed the said material in the court. There was no grant in favor of defendant as claimed by him and the order of the Special Deputy Commissioner dated 20.09.1982 makes it clear that defendant was never in possession and in cultivation of any part of the land in Sy.No.3. Defendant has also falsely claimed that he has sold land in Sy.No.126. In fact the said survey number belonged to one Shankargouda Linganagouda Patil which was sold by him to the plaintiff’s husband namely Babu Dhammanagi. The Survey Authorities have no legal right to fix the boundaries between Sy.No. 96 and 126 or between Sy.No.97 and Sy.No.126 as claimed by the defendant. In fact lands in Sy.No.96 and 97 are sold to defendant’s brother late Shamaiah which was allotted to him under the settlement deed. The suit schedule property in question was purchased by the vendor of the plaintiff from the defendant’s brother Shamaiah and therefore question of defendant acquiring the same by re-grant or otherwise does not arise at all. Defendant has not made out any prima facie case and the false averments in his affidavit attract punishment U/s 193 of IPC. Since he has not produced any documents or records to prove his possession over the extent of 1 acre 30 guntas, it is prayed to reject the defendant’s application.
7. By virtue of the above facts and circumstances of the case, the points that arise for my consideration:
a. Whether plaintiff is entitled for the relief sought in I.A. No.1 filed U/s.39 rules 1 and 2 of CPC?
b. Whether defendant is entitled for the relief sought in I.A. No.II filed U/s 39 rules 1 and 2 of CPC?
c. What order?
8. I have heard the counsels appearing on both sides and also perused the entire material on record.
9. My findings on the above points are as follows:-
(a) In the affirmative
(b) In the Negative
(c) See final Order
For the following:
R E A S O N S
10. POINT No. 1 & 2: Since both parties have sought orders of injunction, points 1 and 2 are taken for discussions together for better understanding.
The chief contention of the defendant is that the vendors of the plaintiff had no legal and valid title to have executed the registered sale deeds referred in the plaint. It is also his case that the suit schedule property is not in existence at all. Though he files the written statement taking a plea that suit cannot be entertained by this court and injunction cannot be granted in respect of Inam lands, he himself seeks injunction in respect of schedule property described in his application as well as written statement. His contention that entire land in Sy.No.3 vested with the Government as on 10.12.1956 is without any basis. In other words no material is placed before the court to show that lands in Sy.No.3 of Navaratna Agrahara village in fact vested with the Government to the exclusion of others. The said plea taken by him is negatived by the Land Tribunal, Devanahalli in its order dated 20.09.1982 passed in case No. LRF (INA) 272/1980-81. At page No.11 of the said order it is observed thus:-
“It is evident from the orders of the Special Deputy Commissioner for Inams Aboliton in case No.51/1958-59 Shri Shamaiah one of the Jodidars has been registered as an occupant over 28 acres 4 guntas of land in Sy.No.3 of Navaratna Agrahara village under Sec.9 of the Mysore (P & M) Inams Abolition Act and the same has been brought on the Revenue records. The evidence on records clearly establishes that the land was in cultivation even prior to the date of vesting and even after its purchaser by the petitioners the land has been under their cultivation continuously till today. The subsequent sale purchasers are also said to be in cultivation of the land in question. The evidence adduced by the representative of the Assistant Director of Land Records also show that these lands are not reserved kharab lands and are assessed for agricultural assessment. All these evidences went to show that the entire land in Sy.No.3 of Navaratna Agrahara village is under cultivation even prior to the date of vesting 1958 and also thereafter till today. Therefore the land in question is not a kharab land and fit for cultivation and the same is under actual cultivation by the petitioners and their successors.”
The defendant in this case was the 2nd respondent in the above proceedings before the Land Tribunal and his contention that vendors of the plaintiff were not in possession or for that matter they had no legal right to execute sale deeds does not hold any water in view of the above observations.
11. Defendant in his written statement goes on denying the execution of all the registered sale deeds referred by the Plaintiff. It is the definite case of the Plaintiff that under the settlement deed dated 30.07.1953, father of the defendant late Kempaiah had allotted western portion of Sy.No.3 in favor of the defendant herein and the eastern portion was given to his brother K. Shamaiah. Though defendant admits the above settlement deed, his case is that eastern side of Sy.No.3 was allotted to him and not the western side as stated by the plaintiff. In fact plaintiff has produced the copy of the settlement deed which negatives the above plea taken by the defendant.
12. On perusal of the documents placed before the court as well as the averments in his written statement and also in I.A. No.II he chiefly relies upon the order passed by the Land Tribunal granting occupancy right to an extent of 21 acres in Sy.No.3 of Navaratna Agrahara village by its order dated 20.09.1982. He claims that pursuant by the said order and also directions given by the Hon’ble High Court of Karnataka in W.P.No.21890/1997 and 25364-384/1997 (LR) the revenue authorities had accepted the khata in his name and by virtue of the mutation proceedings in MR No.1/2001-2002, RTC extracts were issued in his name. He further claims that to have sold land measuring 19 acres 8 guntas to various people which were assigned Sy.No.118 and 126 and now holds only an extent of 1 acre 30 guntas which is assigned new Sy.No.3/2005. What was the extent of Sy.No.118 and what was the extent of Sy.No.126 is not pleaded by him. He also does not disclose to whom and under what deeds he sold 19 acres 8 guntas of land which he claims. There is no material placed before the court to show that he had exercised his rights of ownership much less possession over the 21 acres of land said to be in his possession by virtue of the order of Land Tribunal. No copies of sale deeds or other conveyance are placed before the court that he had in fact sold 19 acres and 8 guntas of land in Sy.No.3. Except for his pleadings in the written statement and averments in I.A. No.II the above stand taken by him has no support of any documents whatsoever. Hence the plea taken by him that he was in possession of 21 acres of land by virtue of the Land Tribunal order or for that matter pursuant to directions of the Hon’ble High Court of Karnataka in the above writ petitions does not have any basis whatsoever.
13. The main crux of the dispute appears to be already laid to rest by the Special Deputy Commissioner, Bangalore District in case No. INA CR-227/1997-98 by order dated 31.10.2002 itself. This proceeding is conspicuously concealed / not disclosed by the defendant probably for the reasons stated and finding given therein. One S. Govindappa S/o late K. Shamaiah and the defendant herein are the petitioners in the above case, which is filed against the State represented by the Special Deputy Commissioner, Bangalore District. The said Govindappa is none other than the brother’s son of defendant and the above proceeding is represented by the defendant on behalf of the said Govindappa on the basis of a power of attorney. Occupancy rights in respect of lands in Sy.No.3 of Jodi Navarathna Agrahara village were sought to be confirmed by the petitioners i.e., defendant and his brother’s son Govindappa, in the above proceedings and during the pendency of the same they also appear to have filed W.P.No.23527/2002 (LR) before the Hon’ble High Court of Karnataka which was disposed of by order dated 09.07.2002. Filing of the said writ petition and order passed therein is referred by the Special Deputy Commissioner in the above order which states that a direction was given to complete the spot inspection and dispose of the proceedings within a period of 2 months from the date of order. Accordingly the Special Deputy Commissioner appears to have visited the spot and though notice was served on the defendant herein, he was not present at the spot when inspection mahazar was written and it was found that he and his brother’s son were not at all in possession of any part of land in Sy.No.3 and hence claim of them to confer occupancy rights cause to be rejected. Few observations in the above order are worth quoting:
At Page No.4 of the order:
“It is pertinent to mention that during the course of pendency of the proceedings before this Authority, the petitioners had filed W.P.No.23527/2002 (LR) and the Hon’ble High Court of Karnataka in its order, dated 09.07.2002 has made the following:
Taking into consideration, the averments made in the petition, I deem it proper to direct the respondents to complete the spot inspection within two months from today. The respondent is also directed to complete, within three months thereafter, the entire proceedings in accordance with law.”
At page 5:
“As per the directions of the Hon’ble High Court of Karnataka, spot inspection was also fixed. In this connection, a notice of Spot Inspection dated 04.09.2002 at 9.00 a.m. calling upon the petitioners-Shri K. Srinivasamurthy and S. Govindappa to be present at the spot on the date and time with a specific direction to show the land in respect of which occupancy right is sought for. As otherwise after spot inspection further action will be taken as per rules. Shri K. Srinivasamurthy has acknowledged receipt of his Notice on 02.09.2002.
The spot was inspected by this authority on 04.09.2002 in the presence of the villagers. Despite service of the notice to Shri K. Srinivasamurthy on 02.09.2002 (his acknowledgement dated 02.09.2002 for having received the same notice is also available in the record), the petitioner was not present at the time of spot inspection. Further, during the spot inspection a Mahazar was also drawn. On enquiry with the local villagers, it was ascertained that Shri. K. Srinivasamurthy had never cultivated the land and they cannot show the land which the petitioner is claiming. As already said, the petitioner was not present to show the portion of the land which is stated to be under his occupation and cultivation. The petitioner has also not furnished any sketch of any material with boundaries to show the land which is in his possession, occupation and cultivation. In fact, Shri K. Srinivasamurthy and Shri. S. Govindappa are not residing in the village, they are residing in Bangalore city. Much less, it would be prudent to mention that no land is vacant since the entire land is in possession and occupation of several persons. Further, the entire land is utilized for multifarious purposes, such as grounds of Eucalyptus trees, houses, and so many developments have been made. It was not possible to locate the particular portion of the land claimed by the petitioners, since the entire extent of land is in possession and occupation of several persons coupled with several developments. Further, the petitioners have also not mentioned the names of persons who are in occupation of the land claimed by him”.
Under these circumstances and by virtue of the above factual position, I hold that defendant has not made out any prima facie case in his favour to grant an order or injunction as sought in I.A. No.II.
14. Solitary documents which defendant has placed before the court to show that he is in possession of 1 acre 30 guntas in Sy.No.3/125 is RTC extract for the year 2006-07. His name appears to have been entered in the RTC extract by virtue of mutation proceedings in M.R. No.65/2004-05. On perusal of this mutation extract produced by the defendant, it relates back to the orders passed by the Land Tribunal dated 20.09.1982, referred herein above. Defendant appears to have withheld/concealed the orders passed by the Special Deputy Commissioner in case No.INA.CR.227/97-98 dated 31.10.2002 even before the revenue authorities and has prevailed upon them by showing/placing before them orders of the Land Tribunal and by interpreting directions of the Hon’ble Court of Karnataka in W.P. No.21890/1997 and 25364-384/1997 (LR) etc., to his convenience and has managed to get his name entered in the RTC extract though there appears to be no such land in existence. Order of the Special Deputy Commissioner which is based on the spot inspection made by him personally shows that defendant is not in possession of any piece of land in Sy.No.3 of Navarathna Agrahara village. The said finding that he is not in possession of any land and rejection of his claim by the Special Deputy Commissioner appears to have not been challenged by the defendant and the said omission shows that what is held in the said order is correct. Plaintiff has cause furnished all the copies of registered sale deeds pertaining to her vendors which date back to 1958. All these documents are registered having their own presumption in law. Defendant appears to have not challenged all these deeds in any proceedings initiated by him. As pointed above, his plea that vendors of the plaintiff had no legal right to execute the sale deeds in view of vesting of lands is without any basis and the above material placed before the court by the plaintiff along with mutation register extract in M.R. No.38/2005-06, RTC extracts, survey sketches and photographs clearly show that she is in possession and enjoyment of the suit schedule property measuring 4 acre 30 guntas in Sy.No.3/257 of Navaratna Agrahara village. Since there is no material placed before the court by the defendant to unbelieve or discard the said documents placed before the court by the plaintiff, I hold that she had made out a prima facie case in her favour.
15. In view of the above discussion and reasons stated and also on perusal of the documents placed before the court, court is of the opinion that plaintiff is in peaceful possession and enjoyment of the suit schedule property as on the date of this suit and defendant has failed to demonstrate that Sy.No.3/125 measuring 1 acre 30 guntas is in existence as claimed by him. Further, except for a bare RTC extract, there is no material to show that he is in fact in possession of 1 acre and 30 guntas in Sy.No.3/125 with the given boundaries. Hence, I hold that balance of convenience of granting an order of injunction also lies in favor of the plaintiff and not the defendant. In case an order of temporary injunction is granted in favour of plaintiff, I am of the opinion that no harm or injustice will be caused to the defendant who has failed to prove at this state that he is in possession of the land claimed by him in his application. Since plaintiff appears to have put up compound wall around her property which she has purchased under registered sale deed, if an order of temporary injunction is not granted in her favour, she will be put to irreparable loss and injury which cannot be compensated by any means. Hence, I answer POINT No.1 in the AFFIRMATIVE and POINT No.2 in the NEGATIVE.
16. POINT No.3: In view of the above discussion, reasons stated and findings given to point No. 1 and 2, the following is made:
O R D E R
I.A. No.1 filed by the plaintiff U/o 39 rules 1 and 2 of CPC is allowed.
Defendant, his agents, servants, representatives, assignees or any body claiming through or under him are temporarily restrained from interfering with the plaintiff’s peaceful possession and enjoyment of the suit schedule property in any mode or manner till disposal of this suit.
I.A. No.II filed by the defendant U/o 39 rules 1 and 2 of CPC is rejected .
There is no order as to costs.
Chandrashekar C
Addl. Civil Judge (Jr. Div) & JMFC
Devanahalli