Gowramma vs Chandrappa and Others

S. Abdul Nazeer, J—This appeal is directed against the judgment and decree in R.A. No. 59/2008 dated 25.11.2011 on the file of the Senior Civil Judge & JMFC, Itinerary Shikaripur.

The appellant/plaintiff filed O.S. No. 110/2004 on the file of the Civil Judge (Jr. Dn.) & JMFC at Shikaripura for permanent injunction restraining the defendants from interfering with her peaceful possession and enjoyment of the suit schedule property. According to her, she is the owner and in possession of the suit schedule property. The suit schedule property belongs to her husband and after his death, she has become the exclusive owner and is in possession of the said property.

The defendants have opposed the suit by contending that their predecessors in title were the tenants of the said property. After their death, they have continued to be in possession of the property.

On the basis of the pleadings of the parties, the trial court has framed the following issues:

"1. Whether the plaintiff proves her actual and exclusive possession and enjoyment of the suit property?

Whether the plaintiff proves the alleged interference and the obstruction by the defendants?

Whether the plaintiff is entitled for the relief claimed in the suit?

What order or decree?"

The power of Attorney Holder of the plaintiff was examined as PW-1 and two witnesses were examined as PWs-2 and 3 and documents Ex. P1 to P20 were marked in their evidence. Defendant No. 1 was examined as D.W. -1 and two witnesses were examined as D.W. s-2 and 3 and documents Ex. D1 to D29 were marked in their evidence. The trial Court on appreciation of the materials on record has decreed the suit.

Feeling aggrieved, defendant No. 1 filed R.A. No. 59/2008 before the Senior Civil Judge & JMFC, Itinerary Shikaripur. The First Appellate Court has set aside the judgment and decree of the trial Court and has dismissed the suit. The judgment and decree of the First Appellate Court is under challenge in this appeal.

The appellant has filed an application -I.A. No. 1/2012 under Order 41 Rule 27 read with Section 151 of the CPC seeking production of additional documents, namely, the order passed by the Competent Authority under Section 77A of the Karnataka Land Reforms Act, 1961 (''the Act'' for short) rejecting the application of the respondents seeking grant of land. An application - I.A. No. 1/15 has also been filed by the appellant under Order 41 Rule 27 read with Section 151 of CPC seeking production of an order passed by the Assistant Commissioner, Sagara sub-division, rejecting the appeal filed by the respondents herein challenging the transfer of the revenue entries in relation to the suit schedule property.

While admitting the appeal, this Court has framed the following substantial question of law:

"Whether the First Appellate Court is justified in not considering the presumptory value attached to the RTC entries as on the date of the suit in favour of the appellant under Section 133 of the Karnataka Land Revenue Act?"

I have heard Sri. G.S. Balagangadhar, learned counsel appearing for the appellant. Though the respondents are served, they have remained un-represented.

Learned counsel for the appellant would contend that the appellant was the owner of the property. It was never let out to the respondents at any point of time. Respondents have made false claim that they are the tenants of the said property. He has drawn my attention to the RTC entries from the year 1995-96 till the filing of the suit in order to establish that the appellant is in possession of the suit schedule property. Having regard to the presumptory value of the revenue entries, the Court below was not justified in rejecting the claim of the appellant for grant of injunction. It is further submitted that the respondents have made an application at Ex. D26 for grant of land under Section 77-A of the Act. The application was dismissed on 25.1.2012 after the disposal of the first appeal before the First Appellate Court. Therefore, the said documents could not be produced before the Courts below. It is further submitted that an application - I.A. No. 1/15 has been filed along with the order passed by the Assistant Commissioner rejecting the appeal filed by the respondents challenging the transfer of revenue entries made in the year 1995-96. Due to unavoidable circumstances, this order could not be produced earlier. It is argued that these documents are necessary for the just disposal of the appeal.

I have carefully considered the arguments made at the Bar and perused the materials placed on record.

The specific case of the appellant/plaintiff is that she is the owner of the suit schedule property. However, it is the contention of the defendants that their predecessor was the tenant of the property. From 1966-67 to 1985-86, the name of the predecessor of the defendants finds a place in the cultivators column of the RTC. The plaintiff has not produced any materials to show that the possession of the land has been taken from the defendants according to law. Considering the revenue entries for the period from 1995-96 onwards, the trial Court has decreed the suit. However, the First Appellate Court was of the view that since the RTC contains the name of the defendants or their predecessors in the cultivator''s column for the years 1966-67 to 1985-86, the suit of the plaintiff cannot be decreed.

It is to be stated here that the defendants had not filed an application in Form No. 7 seeking occupancy rights in respect of the said land. However, they made an application in Form No. 7-A under Section 77-A of the Act for grant of land. Their application was marked as Ex. D26 before the trial Court and order sheet of the Competent Authority was marked as Ex. D27. The appellant has produced a copy of the order of the Competent Authority along with the application - I.A. No. 1/12. This order was passed before filing of the second appeal. The appellant has assigned cogent reasons for non-production of the documents before the Courts below. Hence, the application - I.A. No. 1/12 is allowed. It is also evident from the application - I.A. No. 1/15 that an appeal filed by the defendants challenging the mutation entry made in the year 1995-96 in relation to the lands in question in favour of the plaintiff has also been dismissed. The reasons assigned for its belated production of the order of the Appellate Authority is accepted and the application -I.A. No. 1/15 is allowed.

I am of the view that the matter requires reconsideration by the trial Court in the light of the additional documents produced by the plaintiff as above.

In the result, the appeal succeeds and it is accordingly allowed in part. The judgment and decree in R.A. No. 59/2008 dated 25-11-2011 on the file of the Senior Civil Judge & JMFC, Itinerary, Shikaripur is hereby set aside. Similarly, the judgment and decree of the trial Court in O.S. No. 110/2004 dated 11.06.2008 on the file of the Civil Judge (Jr. Dn.) & JMFC, Shikaripura is also set aside. The matter is remanded to the trial Court for fresh disposal in accordance with law and in the light of the observations made above. The trial Court is directed to permit the production of the aforesaid two orders produced along with I.A. No. 1/12 and I.A. No. 1/15. The parties are permitted to lead further evidence if they so desire. All contentions are kept open. No costs.