B.K. Krishna Murthy vs B.D. Basavaraju and Others

Budihal R.B., J.—1. This petition is filed seeking to quash the order dated 24.7.2014 passed on I.A. No. 2 in O.S. No. 85/2014 on the file of Civil Judge and JMFC, Sakaleshapura produced as per Annexure ''F'' and also to quash the judgment passed in MA No. 7/2014 dated 4.2.2014 passed by the Senior Civil Judge and JMFC, Sakaleshapur produced as per Annexure ''J''.

Heard the arguments of the learned counsel for the petitioner-plaintiff and also the learned counsel appearing for respondents-defendants.

Petitioner-plaintiff filed the suit against the defendants before the trial Court for the relief of permanent injunction alleging that defendants are causing obstruction to the peaceful possession and enjoyment of the plaintiff in respect of the suit schedule property. The defendants opposed the said suit. In the said suit, plaintiff also filed I.A. No. 2 under Order 39 Rules 1 and 2 seeking temporary injunction during the pendency of the suit as against the defendants. Respondents filed objection statement. Ultimately, the trial Court having heard on the merits of said application, rejected the same, as against which, petitioner preferred an appeal in M.A. No. 7/2014. The appellate Court also dismissed the said appeal confirming the order of the trial Court in rejecting the application.

Learned counsel for the petitioner has submitted that petitioner is the legal representative of one late Kenchaiah. The land in old Sy. No. 171, new Sy. No. 231 measuring 3 acres 31 guntas was granted in favour of said Kenchaiah by the Government in the proceedings SBR No. 957/60-61. There afterwards, the father of the plaintiff sold the said property in favour of defendant No. 1 under the registered sale deed and subsequently, the same was challenged before the Assistant Commissioner that it is in violation of the provisions of the Karnataka Scheduled Castes and Scheduled Tribes (Prohibition of Transfer of Certain Lands) Act, 1978 wherein, the Assistant Commissioner has set aside the said sale and restored the said land in favour of the father of the plaintiff by declaring the sale deed as null and void. From the said date, plaintiff is in possession and enjoyment of the suit schedule property. Learned counsel has further submitted that even for the re-delivery of possession from the defendants to the plaintiff, document is produced as per Annexure ''B'' dated 17.11.1990. The Assistant Commissioner has also drawn the mahazar in the presence of panchas for re-delivery of possession to the plaintiff from the defendants. He has submitted that this important document was not at all considered properly by both the Courts below and has wrongly held that plaintiff has failed to establish his possession over the suit schedule property and wrongly rejected the said application. Learned counsel has submitted that in view of redelivery of possession to the plaintiff from the order of the revenue authorities from that date, he continued in possession and was raising crops in the suit schedule property. Before this Court also he has filed the application seeking permission of this Court to harvest the crop. It is submitted that when the Assistant Commissioner''s order was challenged by the defendants before this Court by preferring the writ petition, same was allowed and matter was remanded back to the Assistant Commissioner to consider the limitation aspect and the said proceedings are still pending before the Assistant Commissioner. Therefore, it is the contention of the learned counsel that he has produced documentary evidence to show his possession over the suit schedule property. The trial Court as well as the first appellate Court ought to have considered his application and granted temporary injunction order in his favour. Hence, the orders of both the Courts below are illegal and not in accordance with the material placed on record. He has also submitted that that the defendants have also filed another suit seeking declaration and injunction wherein the said Court made reference in its order regarding re-delivery of possession from the defendants in favour of the plaintiff. In this regard he has drawn the attention of the Court to the relevant paragraph of the said order in respect of another suit.

Per-contra, learned counsel for the respondents-defendants during the course of his arguments submitted that under the registered sale deed executed by the original grantee Kenchaiah in favour of defendants, possession of the said property was handed over in favour of the defendants and they continued in possession of the said property. Though there is an order from the Assistant Commissioner canceling the sale transaction and for restoring the property back to the plaintiff, same was challenged before this Court in W.P. No. 6005/1991 and this Court allowed the said writ petition and remanded the matter back to the very Assistant Commissioner directing him to consider the limitation aspect which was not at all considered and till today matter is pending before the Assistant Commissioner. It is submitted that though it has been held by the Assistant Commissioner in his order that the said alienation is against the provisions of the Karnataka Scheduled Castes and Schedule Tribes (Prohibition of Transfer of Certain Lands) Act, but the possession continued with the defendants and it was never handed over back to the plaintiff. With regard to the document relied upon by the learned counsel for the petitioner as per Annexure ''B'', counsel submitted that this document is a created one and cannot be looked into at this stage. The date on the top of the said document is 17.11.1990, but the signature of the Assistant Commissioner, Sakleshpur Sub-Division is dated 23.11.1990. It is also his contention that though there is a mention that panchanama was drawn for redelivery of possession of the property, no such panchanama is produced before the Court along with Annexure ''B''. In this connection, he has also drawn the attention of this Court to Rule 3(6) of the Karnataka Scheduled Castes and Schedule Tribes (Prohibition of Transfer of Certain Lands) Rules, 1979, which reads as under:

"3. Resumption and restitution of granted lands:

(6) After enquiry, the Assistant Commissioner shall consider all the objections raised and pass an order giving reasons for his conclusions. Thereafter, he may take possession of such land after evicting the persons in possession thereof in the manner specified in Section 39 of the Karnataka Land Revenue act, 1964 and take further action as provided in Section 5."

and submitted that if at all possession is to be handed over back to the plaintiff by the defendants, the authorities have to follow the procedure contemplated under Section 39 of the Karnataka Land Revenue Act, 1964. He has referred to Section 39 of the Karnataka Land Revenue Act, which reads as under:

"39. Manner of evicting any person wrongfully in possession of land.--Whenever it is provided by this Act or any other law for the time being in force that the Deputy Commissioner may or shall evict any person wrongfully in possession of land or where any order to deliver possession of land has been passed against any person under this Act, such eviction shall be made or such order shall be executed, as the case may be, in the following manner, namely.--

(i) by serving a notice on the person or persons in possession requiring them within such time as may appear reasonable after receipt of the said notice to vacate the land; and

(ii) if such notice is not obeyed, by removing or deputing a subordinate Officer to remove any person who may refuse to vacate the same; and

(iii) if the Officer removing any such person is resisted or obstructed by any person, the Deputy Commissioner or the Revenue Officer, as the case may be, shall hold a summary inquiry into the facts of the case and, if satisfied that the resistance or obstruction was without any just cause and that such resistance and obstruction still continues, may, without prejudice to any proceedings to which such person may be liable under any law for the time being in force for the punishment of such resistance or obstruction, take or cause to be taken, such steps and use or cause to be used, such force as may, in the opinion of such Officer, be reasonably necessary for securing compliance with the order."

Therefore, it is his contention that simply because certain document is produced stating that possession was re-delivered as per Annexure ''B'', at this stage no importance can be attached to the said document since it is a matter of trial and that there is concurrent findings of the Courts below regarding defendants being in possession of the suit schedule property, which factual aspect cannot be disturbed in this petition unless there is illegality shown by the other side. Hence, it is submitted that there is no merit in the writ petition and the same is to be rejected.

I have perused the grounds urged in the writ petition, impugned order of the trial Court as well as the first appellate Court, so also, all the documents produced by the writ petitioner herein along with the petition.

Though the learned counsel has canvassed in his arguments about the grant of land in favour of his father Kenchaiah, but the other important factual aspect about the sale of the suit land in favour of the defendants by Kenchaiah under the registered sale deed and about the proceedings taken before the Assistant Commissioner for cancellation of said alienation and subsequent proceedings before this Court in the writ petition remanding the matter to the Assistant Commissioner, regarding all these material aspects there is no pleading in the plaint. It is simply mentioned in the plaint that suit schedule property is granted in favour of Kenchaiah and plaintiff is the legal representative of said Kenchaiah and defendants have started causing obstruction. Hence, suit was filed seeking injunctory relief.

Looking to the arguments canvassed by the learned counsel for the petitioner, his main contention is based on the document Annexure ''B'' and it is his grievance that this important material document was not properly considered and appreciated by the trial Court. Therefore, there is illegality in the orders of the Courts below.

I have perused the document Annexure ''B'' and as I have already observed above, this is with regard to re-delivering the possession from the defendants to the plaintiff under the proceedings said to have been conducted by the Assistant Commissioner, Sakleshpur. Perusing this document as rightly submitted by the learned counsel for the respondents-defendants, on the top of the said document one date is mentioned and the signature of the Assistant Commissioner is on some other day. Therefore, the question will be exactly on which date the proceedings were conducted. Not only that, it refers to the panchanama drawn. But separate panchanama said to have been drawn is also not annexed with the document Annexure ''B''. So also, with regard to the legal aspect of taking back the possession from the defendants is concerned, I have perused the relevant provisions which were brought to the notice of this Court by the learned counsel for the respondents i.e., Rule 3 of the Karnataka Scheduled Castes and Schedule Tribes (Prohibition of Transfer of Certain Lands) Rules, 1979, so also, Section 39 of the Karnataka Land Revenue Act. With regard to these provisions and the requirements of these provisions absolutely there is no mention in the document Annexure ''B''. Under such circumstances, these are all the things which will have to be considered by the Courts below during the course of trial, after recording evidence on both sides. Apart from that, there is concurrent finding of the Courts below regarding the factual aspect that plaintiff has failed to establish his prima facie possession over the suit schedule property. Even this Court has also observed that when the Assistant Commissioner''s order itself has been cancelled, the entries in the RTC cannot be given much importance.

Considering all these aspects of the matter, I am of the opinion that unless and until it is shown to this Court while exercising jurisdiction in the writ proceeding that there is patent illegality in the orders of the Courts below, this Court cannot interfere into the concurrent findings of the Courts below only on the factual aspect. Under such circumstances, I do not find any illegality in the orders of the Courts below. No merit in the writ petition. Accordingly, same is hereby dismissed. Consequently, I.A. No. 1/2016 filed by the petitioner seeking permission to harvest the crop is also dismissed.