Smt. Gowramma and Others vs B.S. Nanjundaiah

The Hon''ble Mr. Justice Ajit J Gunjal

Even though the matter is listed for admission, with consent, it is taken up for final disposal.

The appeal is admitted to consider the following substantial questions of law:

(1) Whether the appellate court was justified in reversing the judgment and decree passed by the learned Trial Judge on the ground that the grant made in favour of the original plaintiff has been set aside.

(2) Whether the judgment and decree passed by the learned Trial Judge also can be sustained having regard to the fact that the proceedings regarding the grant in favour of both the plaintiff as well as the defendant are pending before the competent authorities under the Land Grant Rules.

The facts are as follows:

This appeal is by the legal heirs of the original plaintiff. The case of the original plaintiff before the trial court was that the suit schedule property originally belonged to the Government. The original plaintiff was cultivating the same unauthorisedly for a period of fifteen years. On an application made by the original plaintiff, the Tahsildar, Tiptur granted the suit schedule property to the plaintiff pursuant to an order dated 29.7.1994. On the basis of the said grant, mutation was effected in MR. 1/1997-98. Thus, according to the original plaintiff, he is the absolute owner and in possession of the suit schedule property. The defendant has no right, title or interest and is trying to trespass into the land of the original plaintiff. Hence, the suit is for declaration of title and also for permanent injunction.

The defendant enters appearance and files his written statement inter alia contending that he is in possession of total extent of 2 acres 18 guntas in Survey No. 78 and he has been cultivating the said extent of 2 acres 18 guntas unauthorisedly. It is his case that he has also made an application for regularisation and the said application is pending.

On the basis of the specious pleadings, the learned Trial Judge was of the view that the plaintiff has got a better title inasmuch as there is grant made in his favour and he is in possession and the application filed by the defendant is pending adjudication and thus, decreed the suit. Aggrieved by the same, the defendant files an appeal before the appellate court. During the pendency of the appeal, an application is made under Order XLI Rule 27 of the Code of Civil Procedure, 1908, to produce one document namely, the cancellation of the grant made in favour of the original plaintiff. The said application is allowed. The learned Appellate Judge on the basis of the said cancellation of the grant in favour of the original plaintiff allowed the appeal and dismissed the suit. Hence this appeal.

I have heard Shri Chandan S Rao, learned Counsel appearing for the appellant and Shrihari, learned Counsel appearing for the respondent.

It is to be noticed that the grant made in favour of the original plaintiff was questioned by the defendant before the Assistant Commissioner on the ground that he had also made an application for regularisation of his unauthorised occupation. The Assistant Commissioner accepted the appeal and set aside the grant and remitted the application of the original plaintiff to the Tahsildar for fresh adjudication to be heard along with the application filed by the defendant for regularisation. Thus, as of now, the application filed by the original plaintiff which is being prosecuted by the legal heirs and that of the defendant is pending adjudication before the Tahsildar. Hence, I am of the view that the matter is required to be examined by the learned Trial Judge on the basis of the other evidence which is available to see whether the plaintiff is in possession of the suit schedule property as on the date of the suit. Hence, the following:

ORDER

The appeal is allowed. The judgments and decrees passed by Appellate Judge and the learned Trial Judge are set aside. The proceedings stands remitted to the learned Trial Judge. The learned Trial Judge shall consider other evidence on record and record a finding on the issue regarding possession. Since both the parties are before this court, they shall take this proceedings as notice to them and shall appear before the learned Trial Judge on 2nd December 2011. They shall not await notice from the learned Trial Judge. Both the parties are permitted to lead further evidence. The appeal stands disposed of. Substantial questions are answered accordingly.