Shashikiran vs Tahsildar, Nagamangala Taluk and Others

Ravi V. Malimath, J.—The case of the plaintiff is that his father, E.V. Shanthakumar was granted 10 guntas of Government land out of 6.17 acres of land in survey No. 278 of Nagamangala Town, for non-agricultural purpose by the Government vide its order dated 16.03.1960. The upset price was credited to the Tahsildhar''s account, who later on, issued a Saguvali Chit on 13.03.1960. The plaintiff has been put in possession and enjoyment of the same by paying assessment to the Government. He was granted license by the Town Municipal Council, Nagamangala for construction of the building. However for want of funds, he could not do so. The Assistant Education Officer, Nagamangala was given possession of the land measuring 17 x 50 feet out of the granted land in terms of the compromise entered into in O.S. No. 73/1992 on the file of then Munsiff, Nagamangala by receipt of Rs. 20,000/-. The father of the plaintiff has gifted the suit schedule property i.e., grant land excluding the land given to the Assistant Education Officer in favour of the plaintiff through a registered gift deed dated 19.10.2000 and put the plaintiff in possession of the same. The katha was changed in the name of the plaintiff and he obtained licence to put up constructions along with the plan and has started construction to an extent of 13.6 feet x 77 feet and he completed the foundation.

At that juncture, the Tahsildhar, Nagamangala and Revenue Inspector, namely, the first and second defendants issued noticed on 11.01.2001 to the plaintiff and on 20.01.2001 to the father of the plaintiff, to cause production of necessary documents to substantiate the title and possession of the plaintiff. The plaintiff and his father replied to the same. Inspite of that, the defendants attempted to interfere with the possession by the plaintiff. Hence, the instant suit was filed seeking for declaration that the plaintiff is the owner in possession of the suit schedule property and consequently a decree for permanent injunction.

On service of summons, the defendants entered appearance and filed the written statement and additional written statement. They admitted the fact that the entire suit land bearing survey No. 278 belongs to the Government. That 2 hectare, 57 acres of land in Survey No. 278 was granted to the industrial department, sericulture department and to the revenue department by the Special Deputy Commissioner, Mandya by means of an official memorandum dated 13.03.1986 for the purpose of construction of quarters for the Revenue Inspectors and Village Accountants, etc. That the respective grantees are in possession of the same. That saguvalli chit referred to by the plaintiff has no connection whatsoever with the alleged grant in favour of the father of the plaintiff and per the darkasth register, the grant under the said number was made in favour of the Rajegowda and Ramegowda in survey No. 16 of Madahalli Village. That the father of the plaintiff is in the habit of concocting documents. They contended that the compromise decree relied by the plaintiff is not binding on them.

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

"i. Whether the plaintiff proves that he is the absolute owner in lawful possession of the suit schedule property?

ii. Whether the plaintiff proves the interference of the defendants?

iii. Whether the plaintiff is entitled for the relief of declaration and permanent injunction?

iv. What decree or order?"

Additional Issue:

"i. Whether the plaintiff proves that the Tahsildar had granted land to his father in his order No. NAP.GDR 60/1960-61, dated 13.03.1960 for non-agricultural purposes in Sy. No. 278 of Nagamangala to an extent of 0.10 guntas?" 5. The plaintiff was examined as PW-1 and produced 51 documents. The defendants examined one witness and produced 9 documents. Issue Nos. 1, 2, 3 and additional issue No. 1 was held in negative. The suit was dismissed. Aggrieved by the same, the plaintiff preferred an appeal which was also rejected. Hence, the present second appeal.

By the order dated 19.04.2013, the appeal was admitted to consider the following substantial questions of law:

"i. Whether the appreciation of the evidence made by both the courts below is perverse?

ii. Whether both the courts below had erred in law in not considering the legal effect of the documents marked in evidence as Exhibits P1 to P51 ?"

The learned counsels submit that the second substantial question of law would be answered by the answer to the first substantial question of law. Hence, it is pleaded that the second substantial question of law would not arise for consideration. On hearing the learned counsels, the second substantial question of law stands deleted. The learned counsels are heard on the first substantial question of law.

Shri. R.L. Patil, learned senior counsel appearing for the appellant''s counsel submits that both the courts below committed an error in misreading the evidence on record. That the courts below failed to consider the decree in terms of Exhibit-P17 passed in O.S. No. 73/1992. That a compromise was effected into in the said suit between the plaintiff''s father and the defendants herein, wherein the property was marked to the plaintiff and the property surrendered by him and for the properties surrendered by him a sum of Rs. 20,000/- was paid. Therefore, the question of title and possession of the plaintiff having been established in terms of the compromise, the trial court committed an error in dismissing the suit. That notwithstanding the same, the other evidence and material on record would clearly show that the plaintiff is the owner in possession.

Per contra, the learned counsel for the respondents-defendants contend that there is no error committed by the trial court that calls for interference. That the defendant had filed the written statement on 26.03.2001 and the additional written statement was filed on 18.09.2001. Based on the pleadings, the trial court framed these issues. The defendants have categorically stated in para-3 of the additional written statement that the compromise being relied upon by the plaintiff to establish their possession and the ownership of the property is not binding on the defendants. Therefore, when the specific plea of the plaintiff is disputed, the trial court should have necessarily framed an issue to that extent. Hence, the failure of the trial court based on the pleadings, would lead to miscarriage of justice. Even otherwise, notwithstanding the fact that the plaintiff''s suit has been dismissed, the appellate court is entitled to hold a different view by decreeing the suit. In such an event, if the suit is decreed without reference to the primary contention of the defendants with regard to Exhibit-P17 not being binding on the defendants, it would lead to miscarriage of justice. Under these circumstances, contentions are advanced as to whether the suit could have been entertained based on the present issues framed and whether non-framing of the issues has led to impugned judgment of the trial court being erroneous?

I have considered the plaint averments as well as the written statements filed by the defendant Nos. 1 and 2 dated 26.03.2001 and the additional written statement filed on 18.09.2001. In para-3 of the written statement dated 18.09.2001, they contend that the alleged compromise entered between the father of the plaintiff and the Education Department would nowhere affect the right, title or interest of the present defendants. That the defendants not being parties to the said compromise are not bound by the said compromise. Therefore, the trial court should have framed an issue as to whether the compromise petition in terms of Exhibit-P17 is binding on the defendants, notwithstanding the contentions of the plaintiff that they have other material to establish. The title and possession is the primary plea of the plaintiff based on Exhibit-P17. Their contention is that the land was originally granted to them in the year 1960 and due to various developments that took place, ultimately there was a compromise effected. The said suit was filed by the father of the plaintiff for permanent injunction with regard to the entire suit schedule property as was granted to him originally. Since a portion of the property was already constructed by the various departments of the Government, a compromise was effected into. In terms of the compromise, the plaintiff''s father was declared to be an owner to a lesser extent of land, than the original grant made to him and for the land that was taken away by the Government, a sum of Rs. 20,000/- was paid to the father of the plaintiff by the education department.

It is based on such a compromise decree, that the plaintiff claims his right in the present suit. The defendants plea is that the compromise is not binding on them for the reasons assigned therein, since the present defendants were not the defendants in the earlier suit and they were not represented by their counsel and defenses of a like nature.

Whether the defences require to be accepted or not is a question to be answered subsequent to the evidence let-in on the same. When the specific case of the defendants is that the compromise is not binding on them, it is only just and proper that the trial court should have framed an issue to the said effect. The relevance of Ex. P-17 will go to the root of the case. Having failed to so, not only the right of the defendants but even the right of the plaintiff based on Exhibit-P17, would stand affected. Therefore, I deem it just and necessary that the trial court frames an issue to the effect whether Exhibit-P17 is binding on the defendants or not? The trial court shall also consider other issues that it deems appropriate and thereafter determine the suit on merits.

For the aforesaid reasons, the substantial question of law is answered by holding that the judgment and decree of both the courts below are perverse in their appreciation of the pleadings and evidence on record. Consequently, the findings recorded in the judgment and decree of both the courts below are set-aside.

The matter is remanded to the trial court for a fresh disposal in accordance with law. The trial court to frame an appropriate issue as to whether Exhibit-P17 namely, the judgment and decree in O.S. No. 73/1992 is binding on the defendants. The Trial court is also entitled to frame other issues that it deems appropriate for the just and final adjudication of the suit. In view of the long pendency of the suit, learned counsels submit that they shall not seek any adjournment in the disposal of the suit. The parties to appear before the trial court on 09.03.2015. The trial court to make an endeavor to dispose off the suit by the end of December ''2015.

Registry to return the original records to the learned Government Pleader.