Mallappa Bhimappa Shilli vs Yallappa

A.V. Chandrashekara, J.—Plaintiff of an original suit bearing O.S. No. 250/2005 which was pending on the file of the Court of Addl. Civil Judge (Jr. Dn.), Gokak, is before this Court by filing an appeal u/s 100 of CPC. Suit filed by the plaintiff against the respondents herein before the trial Court for the relief of permanent injunction in respect of the agricultural land measuring 2 acres 38 guntas in Sy. No. 773/3 of Konnur Village, Gokak Taluk, has been dismissed after contest vide judgment dated 24.06.2009. Appeal filed by the plaintiff u/s 96 before the Prl. Civil Judge, Gokak, in R.A. No. 24/2009 has also been dismissed after contest. Hence, concurrent findings are called in question before this Court.

Heard the learned Counsel in regard to admission. Perused the judgments of the trial Court as well as the First Appellate Court.

Claiming himself to be in lawful possession and enjoyment of the suit schedule property, plaintiff chose to file a suit for the relief of permanent injunction against the defendants. Case of the plaintiff is that his father was a tenant under the defendants and he continued to be tenant till his death and by oversight, he did not file any application in form No. 7 or in form No. 7A after coming into force of Karnataka Land Reforms (Amended) Act, 1974 or 1991. Inspite of not filing applications seeking occupancy right, the plaintiff is stated to be in possession of the same and therefore, he had filed the suit for permanent injunction.

Defendants who are owners of the land in question had contested the suit on various grounds. According to them, plaintiff is not at all in possession of the schedule property and that he cannot maintain a suit as he has not filed any application seeking occupancy right before the Land Tribunal. Hence they had prayed for dismissal of the suit.

On the basis of the above pleadings, the following issues came to be framed:

Whether the plaintiff proves his lawful possession over suit property?

Whether the plaintiff proves threatened interference by the defendants?

Whether the plaintiff is entitled for the relief of permanent injunction as sought for?

What order or decree?

Plaintiff himself is examined as PW1 and one Kadappa Mudakappa Neladhari is examined as PW2. Three witnesses have been examined on behalf of the defendants and two exhibits have been got marked on behalf of the plaintiff and nine exhibits have been got marked on behalf of the defendants.

Ex. D2 is the order copy dated 20.05.2006 passed by the learned Asst. Commissioner, Bailhongal, in regard to the vesting of the land u/s 44(1) of The Karnataka Land Reforms Act, 1974. After analysing the oral and documentary evidence, the trial Court has held that neither the plaintiff nor the defendants are in possession of the schedule property and therefore the plaintiff''s suit is dismissed vide judgment dated 24.06.2009. Appeal filed u/s 96 of CPC has also been dismissed after contest.

Learned Civil Judge (Sr. Dn.), Gokak, has framed the following points for consideration as found in para-10 at page-4 of the impugned judgment, which is as under:

Whether the plaintiff has established his lawful possession over the suit property?

Whether the plaintiff has proved the alleged interference caused by the defendants?

Whether the plaintiff is entitled for the relief of permanent injunction?

Whether the judgment and decree of the trial Court is illegal and not proper and is necessary to be interfered with?

What order?

Hence, concurrent findings are called in question before this Court.

Admittedly Ex. D2 is an order passed by the competent authority i.e., the Asst. Commissioner, Bailahongal Sub-Division on 20.05.2006 in case bearing No. KLR/Appeal 55/04/05. This was an application filed by the defendants herein seeking the revocation of the order passed u/s 44(1) of the Karnataka Land Reforms Act (hereinafter referred to as the Act for brevity).

Section 44(1) of the Act empowers the authorities under the Karnataka Land Reforms Act to transfer the tenanted land in favour of the Government, provided application is not filed by the tenants seeking occupancy right. Section 44(1) of the Act reads as follows:

Vesting of land in the State Government-(1) All lands held by or in the possession of tenants (including tenants against whom a decree or order for eviction or a certificate for resumption is made or issued) immediately prior to the date of commencement of the Amendment act, other than lands held by them under leases permitted u/s 5, shall, with effect on and from the said date, stand transferred to and vest in the State Government.

The learned Asst. Commissioner who is the competent authority under the Karnataka Land Reforms Act, has specifically held that the order of vesting the land in question in the Government is justified. It is found in page No. 2 of Ex. D2, the order dated 20.05.2006 passed by the Assistant Commissioner that vesting of a tenanted land in the Government is free from all encumbrances. It is in this regard, the trial Court has held that neither the plaintiff nor the defendants are in possession of the schedule property as on the date of the suit. Plaintiff is expected to make out a case that he is in possession of the same whether legal or illegal. When the land in question has vested in the Government as per the order passed u/s 44(1) of the Act, the plaintiff cannot maintain a suit on the ground that he is in possession of the same. The order so passed u/s 44(1) is in the nature of a legal fiction. The moment an order is passed u/s 44(1) of the Act, the possession of the land in question is deemed to have been taken over by the Government in the light of legal fiction of vesting.

The course open for the defendants is to move the Asst. Commissioner, Bailhongal, to pass appropriate orders as no final order is passed by the Asst. Commissioner. The order passed by the Asst. Commissioner on 20.05.2006 would disclose that the decision in KLR/Appeal 55/04/05 is subject to the decision of the Civil Court. The suit filed by the plaintiff is only for the relief of permanent injunction and admittedly, plaintiff is not in possession of the property in view of the vesting order passed u/s 44(1) of the Act. Therefore, in the light of a specific order passed by the learned Asst. Commissioner, vesting the land in question u/s 44(1) of the Act, the dismissal of the suit by the trial Court and affirmation of the same by the First Appellate Court is justified. Suffice to state that the plaintiff has not made out a case of being in possession and therefore dismissal is held to be proper.

Notwithstanding the dismissal of the appeal, the Assistant Commissioner is at liberty to pass appropriate final orders on the application filed by the defendants herein who are stated to be the owners in question. He is at liberty to take appropriate decision u/s 44 of the Land Reforms Act, 1974. Hence no good grounds are made out in the appeal to interfere with the well-considered judgment of the trial Court which is affirmed in the First Appellate Court.

Learned Counsel for the appellant has relied upon a decision of this Court reported in 2010(3) KLJ 78 in the case of Doddegowda Vs. The Assistant Commissioner, Mysore Sub-Division, Mysore And Another. As per the facts of the said case, no order had been passed u/s 44(1) of the Karnataka Land Reforms Act by the competent authorities vesting the land in the Government. Therefore, the observation made in the case of Doddegowda''s case that it is open for the plaintiff therein to file a suit for declaration of title having acquired title by way of adverse possession cannot be made applicable to the facts of this case. Hence, the said decision is clearly distinguishable on facts.

The order of status quo has been passed by this Court and the same is in force. The said order of status quo shall remain in force till a comprehensive decision is taken by the learned Asst. Commissioner, Bailhongal, as per the case initiated in KLR/Appeal 55/04/05.

The trial Court as well as the First Appellate Court have adopted proper approach to the real state of affairs by assessing the evidence on the touchstone of intrinsic probabilities. The questions of law proposed in this appeal are not substantial questions of law in essence u/s 100 CPC. Even otherwise, no substantial question of law arises in the present case and the appeal is to be dismissed as unfit for admission.

ORDER

The appeal filed u/s 100 of CPC is dismissed as unfit for admission by upholding the judgments of the trial Court and the First Appellate Court.