Giridhar and Others vs Sharnappa

A.V. Chandrashekara, J.—Heard the learned counsel for the appellants. Perused the records of O.S. No. 73/1998 and O.S. No. 160/1996, which are the basis for the appeals filed in RSA Nos. 634/2007 and 800/2006 respectively. Appellant/Giridhar was the plaintiff in an original suit bearing O.S. No. 160/1996 a suit filed for the relief of permanent injunction relating to an open space measuring 40 x 15 feet bearing Panchayat No. 7/58 of Sonth Village in Gulbarga Taluk, bounded by East Government Road, West land of Sharanappa, North an open space of Narayanrao and South an open space of Shivasharana. The said property, according to the plaintiff Giridhar, belonged to the Gram Panchayat and it was allotted to him on 15.01.1990 through a Hakku Patra, marked as Ex. P1. Since then he is stated to be in lawful possession and enjoyment of the open space.

According to him, khata has been changed into his name by the panchayat authorities and they have entered his name as Khatedar and he is stated to have paid tax to the panchayat. In spite of the same, second defendant/Sharnappa attempted to interfere with his peaceful possession and enjoyment of the suit property by denying his title and possession. Therefore, he was constrained to file a suit for permanent injunction.

The first defendant has virtually sailed with the plaintiff. Second defendant has filed a detailed written statement denying all the material averments. According to him there is no existence of a site in land bearing Sy. No. 322 and that the so called allotment of the site in favour of the plaintiff is a concocted and got up one and the then Pradhan of Gram Panchayat could not have allotted this property belonging to the second defendant. According to him property bearing Sy. No. 322 absolutely belongs to him and on the strength of this Hakku Patra plaintiff has tried to lay claim over the portion of the land and therefore suit is not maintainable.

The said suit was contested and ultimately decreed on 11.12.1997 by the learned First Addl. Civil Judge, Gulbarga as against which an appeal was filed in RA No. 357/2004 and the said appeal came to be allowed and the judgment of the trial Court was set aside vide dated 20.01.2006. During the pendency of O.S. No. 160/1996 second defendant therein i.e. Sri. Sharnappa, filed a suit for permanent injunction in O.S. No. 73/1998 before the II Addl. Civil Judge, Gulbarga, in respect of the land bearing Sy. No. 322 of Sonth Village on the ground that he is absolutely owner of the possession of the same and the defendants Giridhar and Dattatrayarao have no right title interest or possession over the schedule land. Defendants therein filed a detailed written statement denying all the averments. Ultimately, suit was contested and suit was decreed on 18.04.2006 as against which an appeal was filed in terms of Section 96 of CPC before the First Appellate Court by the defendant therein in RA No. 108/2006 and the said appeal came to be dismissed on 18.01.2007. Thus, Giridhar file a separate appeal under Section 100 of CPC.

Heard Sri. Shivanand Patil, learned counsel for the appellants. Perused the records.

Admittedly, the second defendant of O.S. No. 160/1996 who was the plaintiff in the subsequent suit O.S. No. 73/1998 has specifically denied the right title and interest of plaintiff/Giridhar in respect of open space measuring 40 x 15 feet bearing Panchayat No. 7/58 of plot No. 20. The said document which is mentioned as Hakku Patra is marked as Ex. P1.

(a) Whether Pradhan was competent to issue a Hakku Patra to Giridhar is in question?

(b) Whether any property belonged to Panchayat to the West of Government Road is in question?

(c) Whether any acquisition of land was made by Panchayat to carve out sites is in question?

Whenever the right title and interest of an open space is emphatically denied by the opposite party, the normal course in such an event is to file a comprehensive suit for declaration of title and permanent injunction, if a person is in possession of the same or for possession, if he is not found in possession of the same. Principles to this effect have been succinctly explained by the Hon''ble Apex Court in the case of Anathula Sudhakar Vs. P. Buchi Reddy (Dead) by LRs. and Others, . In such an event parties would be at liberty to request the Court to appoint a Commissioner to measure the land to the West of Government Road and to locate the existence of Sy. No. 322 and if any other property belonging to Panchayat. In this view of the matter the approach adopted by both the Courts cannot be found fault with. No good grounds are made to interfere with impugned judgment passed by the trial Court. Both the Courts have adopted right approach to the real state of affairs. In the light of the suit being filed by Giridhar only for injunction in respect of open space. It need not be reiterated that if he is able to prove his title to the property and possession, he would be entitled for suitable relief''s. Accordingly, no substantial question of law arises for consideration of this Court.

Accordingly, both the appeals are dismissed as unfit for admission.

Notwithstanding the dismissal of these appeals, appellant/Giridhar is entitled to file a suit comprehensive, suit for the relief of declaration of title and for the consequential relief of injunction or possession, as the case may be.

All the contentions are kept open to be urged in case comprehensive suit is filed.

Parties to bear their own costs.