Shivanandappa and Veerabhadrappa vs Kamanna

S. Abdul Nazeer, J.—This appeal is directed against the judgment and decree in R.A. No. 41/2011 dated 18.2.2013 on the file of the Senior Civil Judge and JMFC at Sira whereby the judgment and decree in O.S. No. 301/2008 dated 12.8.2011 on the file of the Civil Judge and JMFC at Sira has been confirmed. The appellants are the defendants before the trial Court and the respondent is the plaintiff. For the sake of convenience, the parties are referred to by their respective ranking before the trial Court

The plaintiff filed the above suit for permanent injunction restraining the defendants from interfering with his peaceful possession and enjoyment of the suit schedule property. It is the case of the plaintiff that the suit schedule property was granted in his favour vide order of the Assistant Commissioner bearing P.G.C. No. 10/1990-91 dated 31.8.1990. Prior to that, he was cultivating the suit schedule property unauthorizedly. After the order of the Assistant Commissioner, his name was mutated in the RTC. He has invested huge amount to dig a bore-well and has installed a pump set for the development of the suit schedule property.

The contention of the defendants is that the order of the Assistant Commissioner dated 31.8.1990 is a concocted document. They have challenged the said order before the Deputy Commissioner, Tumkur. The revenue records produced by the plaintiff are created by colluding with the revenue authorities. The defendants are in possession of the suit schedule property. They have paid T.T. in respect of the suit schedule property and they have also filed an application for grant of the said property.

On the basis of the pleadings of the parties, the trial Court has framed the relevant issues. Plaintiff got himself examined as P.W1 and documents Ex. P1 to Ex. P20 are marked in his evidence. He has also examined two other witnesses as P.W2 and P.W3. The first defendant got himself examined as D.W1 and the documents Ex. D1 to Ex. D18 are marked in his evidence. He has also examined a witness as D.W2. The trial Court on consideration of the materials on record has decreed the suit. As noticed, the first Appellate Court has confirmed the said decree.

The contention of the learned Counsel for the appellants/defendants is that the courts below have failed to consider the application filed by the defendants before the Tahsildar for regularization of unauthorized occupation of 2 acre 20 guntas of Government land. Notice has been issued on the said application to show cause as to why penalty at the rate of Rs. 500/- per acre should not be levied and recovered for unauthorized cultivation of Government land to an extent of 1 acre 20 guntas. The documents produced by the defendants would clearly establish that the father of the appellants and after his death, the defendants have been in unauthorised occupation of the land. Ex. P13 is a concocted document. In order to show the falsity of the claim made by the plaintiff, the defendants filed an application I.A. No. 3 for direction to the plaintiff to produce the original documents with regard to the so called grant, the saguvali chit, if any issued in favour of the plaintiff, survey sketch, etc. The said application has been erroneously rejected by the first Appellate Court. Even the other application filed by the defendants for appointment of a Local Commissioner for investigation and the application for production of additional documents have also been erroneously rejected.

On the other hand, learned Counsel appearing for the respondents has sought to justify the impugned judgment and decrees. It is evident that under Ex. P13, the land in question was allotted in favour of the plaintiff. It appears that the unauthorized occupation of the land by the plaintiff has been regularized under this order and it is not the case of a fresh grant. Ex. P1 to Ex. P9 would indicate that RTC stands in the name of the plaintiff. In fact, as on the date of th suit also, the RTCs were standing in the name of the plaintiff. Perusal of Ex. P13 and other RTCs would clearly indicate that plaintiff is in possession of the properties. D.W1 in his evidence has stated that he is having land in Sy. No. 174 of Huildore Village. Plaintiff is also in possession of 2 acres of land in Sy. No. 174 of Huildore Village. The defendants have not produced any materials to show that the land has been granted in their favour. The documents produced by the defendants are Ex. D1, an acknowledgment seeking regularization of the suit schedule property. Ex. D3 is the tax paid receipt for the year 2009. Ex. D4 is the show cause notice issued to the father of the defendants. Perusal of the above documents clearly discloses that they are not in possession of the property. Both the Courts on proper appreciation of the oral and documentary evidence on record have held that plaintiff is in possession of the property. I do not find any error in the said order. The appeal does not involve any substantial question of law. It is accordingly dismissed. No costs.