K.P. Shivanandappa and Others vs Neeladevi

Ravi V. Malimath, J.—Aggrieved by the concurrent findings recorded by both the courts below in dismissing the plaintiffs suit for declaration and injunction, the plaintiffs have filed this appeal.

The case of the plaintiffs is that they are the owners in possession of the suit schedule property bearing survey No. 86, measuring 7 guntas and survey No. 88, measuring 20 guntas situated at Jade Village, of Jade Hobli, Soraba Taluk. As the lands were not adjacent to the lands owned by J.V. Chandrashekarappa, he sold the same i.e. favour of the plaintiff for a valid consideration. In addition, the plaintiff also given some other properties to J.V. Chandrashekarappa, which were adjacent to his properties. Ever since then, the plaintiff has been in possession of the same. The katha was changed in the name of the defendant on death of her husband J.V. Chandrashekarappa. While getting the katha transferred, the katha of the property which was sold in favour of the plaintiffs was also mutated in favour of the defendant. Hence, the plaintiff moved the Assistant Commissioner for rectification of the mistake.

The appeal was dismissed on the ground that The Karnataka Prevention of Fragmentation and Consolidation of Holdings Act, 1966, was in force at the time of purchase by the plaintiff and hence the title of the plaintiff was not valid. Further, that the plaintiff had not taken permission from the State Government to purchase the purchase the agricultural lands in terms of the Land Reforms Act.

Taking advantage of the same, defendant tried to obstruct the peaceful possession and enjoyment of the plaintiff and tried to sell the standing trees in the schedule property. Hence, the instant suit was filed seeking for a declaration that the plaintiff is the owner of the suit schedule property and for a direction to the revenue authorities to mutate the name of the plaintiff and for permanent injunction and consequential reliefs.

On service of suit summons, the defendants entered appearance and denied the suit averments. That the plaintiff is not the lawful owner of the suit schedule property. That the plaintiff and his wife are doctors. Therefore, their annual income being more than Rupees Two lakhs, they could not have purchased the suit schedule property. The sale in favour of the plaintiff was denied. That the alleged sale deed was not acted upon at any point of time. The sale is opposed to the provisions of the Land Reforms Act. That there was no necessity to alienate the property in favour of the plaintiff. That the mutation entries in favour of the defendant is just and appropriate.

Based on the pleadings, the trial court framed the following issues and additional issues for consideration:

"i. Whether the plaintiff proves that they are in lawful possession and enjoyment of the suit schedule property as on the date of the suit?

ii. Whether the plaintiffs further prove the alleged interference by the defendant to their enjoyment over the suit schedule property?

iii. Whether the plaintiffs further prove that they are entitled to get the relief of permanent prohibitory injunction as sought against the defendant?

iv. What decree or order?

Additional Issue:

i. Whether the plaintiff proves their ownership of the suit property?

ii. Whether the defendant proves that the suit is not maintainable?"

In support of the case of the plaintiff, three witnesses were examined and eight documents were marked. One witness was examined on behalf of the defendant and four documents were marked. All the issues were held in the negative. The suit was dismissed. The plaintiff filed a regular appeal, which was also rejected. Hence, the present second appeal.

By the order dated 15.01.2013, the appeal was admitted to consider the following substantial question of law:

"i. Whether the courts below were right and justified in declining the relief of declaration of title of the plaintiff over the suit property based on the provisions contained under Section-79A of the Karnataka Land Reforms Act and the order passed by the Assistant Commissioner?

ii. Whether the lower Appellate Court erred in holding that the Sale deed executed was hit by the provisions of the Karnataka Prevention of Fragmentation and Consolidation of Holdings Act, 1966?

iii. Whether the courts below were right and justified in declining to protect the possession of the plaintiff in the light of the registered Sale deed executed in favour of deceased-plaintiff and the other evidence on record?"

The learned counsel for the appellant-plaintiff contends that the impugned order is bad in law and liable to be set-aside. That there has been a valid sale executed in favour of the plaintiff. That the finding recorded that there has been a violation of the Land Reforms Act as well as the Karnataka Prevention of Fragmentation and Consolidation of Holdings Act, 1966, is erroneous. That the sale deed having been executed, the name of the plaintiff, should be appropriately mutated.

On the other hand, the learned counsel for the respondent defends the impugned order.

Heard learned counsels and examined the material on record.

The undisputed facts are that an appeal was filed by the plaintiff before the Assistant Commissioner seeking mutation of their name. The same was dismissed on the ground that there has been a violation of the Karnataka Prevention of Fragmentation and Consolidation of Holdings Act, 1966. Secondly, that the plaintiff has not taken permission of the Government to purchase the agricultural land. Therefore, the sale deed was held to be void. No action has been taken by the plaintiff subsequent to the order of the Assistant Commissioner and the same has attained finality. The present proceedings are to seek for a declaration based on the sale deed. When the Assistant Commissioner has held that mere is a violation of the Land Reforms Act, as well as the Karnataka Prevention of Fragmentation and Consolidation of Holdings Act, 1966, no decree could be granted as sought for. Whether such a finding recorded by the Assistant commissioner is just and appropriate and whether it is sustainable, is an alien consideration so far as this suit is concerned. The present suit is based purely on the sale deed executed in favour of the plaintiff on which, entries are sought to be made. Therefore, when the sale deed is held to be bad, the question of decreeing the suit does not arise. Consequently, the first substantial question of law is answered by holding that the courts below were right and justified in declining the relief of declaration of title.

The second substantial question of law is answered by holding that there was no error committed by the courts below in holding that the sale deed was hit by the provision of Karnataka Prevention of Fragmentation and Consolidation of Holdings Act, 1966. The third substantial question of law is answered by holding that the courts below were justified in declining to protect the possession of the plaintiff notwithstanding the registered sale deed executed in respect of the deceased plaintiff and other findings on record.

Consequent to answering the substantial questions of law the judgment and decree of both the courts below being just and does not call for interference. Hence, the appeal is dismissed.