V.B. Basavegowda and Others vs Basavegowda and Others

P.D. Waingankar, J.—1. This appeal is directed against the judgment and decree dated 22.06.2011 passed in Regular Appeal No. 56/2009 on the file of the Senior Civil Judge and JMFC at K.R. Pet, whereby the appeal came to be allowed while reversing the dismissal of O.S. No. 176/2000 on the file of the Civil Judge (Junior Division) and JMFC, K.R. Pet by judgment and decree dated 09.10.2009.

The parties are referred to their respective ranks before the Trial Court. The appellants are referred to as ''defendants'' and respondents as ''plaintiffs''.

Plaintiffs filed a representative suit under Order 1 Rule 8 of CPC for declaration that the suit schedule properties are Grama Tana properties vested in Government and to restrain the defendants from putting up the construction over any portion of the suit schedule properties.

It is the case of the plaintiffs that suit schedule Sy. No. 28 measuring 6 acres is Government land. It is reserved for Grama Tana for the purpose of construction of houses for the houseless people of the village. Defendant No. 1 is the father of defendant Nos. 2 to 8. Defendant No. 3 is the Government Official, defendant No. 4 is the Vice President of Haralahally Grama Panchayat. The defendants are living in a joint family managed by defendant No. 1 their father. Defendant No. 4 by making use of his political power created some documents and got changed Khata in respect of 15 guntas of land out of Sy. No. 28 by creating three Hakku Pathra in the name of defendant Nos. 1 to 3. Defendant No. 1 obtained Khata in respect of Janjar No. 72, property No. 44 measuring 90 x 90 feet, defendant No. 2 obtained Khata in Janjar No. 73, property No. 50 measuring 70 x 80 feet, defendant No. 3 obtained Khata No. 71, property No. 51, measuring 60 x 75 feet. These three properties are schedule properties. Defendant Nos. 1 to 3 obtained licence in order to put up construction over the aforesaid properties granted to them by the Panchayat. Plaintiffs are poor houseless persons living in a sit out of others. Plaintiffs requested defendant No. 4 to allot sites to construct houses for their residence in the aforesaid survey number. But the defendant No. 4 declined. On the other hand, defendants have grabbed the Government land illegally with their political influence. Plaintiff No. 1 applied for certified copy of the Hakku Pathra dated 29.06.2000 issued in the name of defendant Nos. 1 to 3. To know the veracity of the Hakku Pathra, the plaintiffs obtained an endorsement from the Panchayat, wherein it is stated that there are no proceeding regarding grant of sites to defendant Nos. 1 to 3 by issuance of Hakku Pathra. In other words, the defendants have created and fabricated Hakku Pathra in their names and obtained licence to put up construction. The plaintiffs find it very difficult to control the illegal activities of the defendants and to restrain them from putting up the construction over the schedule properties. Therefore, they have filed the suit for declaration and injunction against the defendants.

The defendants contested the suit. Defendant No. 1 filed written statement which has been adopted by other defendants. The sum and substance of the written statement filed by the defendants is that schedule properties have been granted to them by issuance of the Hakku Pathra by the Mandal Panchayat in 1988. The defendants have denied that they have created Hakku Pathra or for that matter, defendant No. 4 by using his political power created Hakku Pathra. They also contended that the suit is bad for non-joinder of necessary parties since neither the Government nor the Panchayat have been made as parties to the suit. Further, it is contended that the extent in respect of which Hakku Pathra have been issued to defendant Nos. 1 to 3 comes to 15 guntas out of 6 acres. Even if the plaintiffs are in need of the land for construction of the houses, they can apply to the Panchayat in remaining 5 acres 25 guntas of land out of Sy. No. 28. It is further contended that the defendants are the owners of the schedule properties on the strength of the Hakku pathra issued in their favour and as such, the plaintiffs have got no locus-standi to file suit against the defendants, that too without impleading the Government and Panchayat as party, and that the suit has been filed just to harass the defendants who are the lawful owners of the schedule properties. Hence, the defendants sought for dismissal of the suit.

Pleadings gave raise to the following issues:-

i) Whether the plaintiffs prove that the suit schedule properties are the properties of Grama Tana and vested with the Government?

ii) Whether the plaintiffs prove the alleged interference?

iii) Whether the defendants prove that suit schedule properties were granted to them by Government as contended at para No. 3 of the written statement?

iv) Whether the plaintiffs prove that they are entitled for the relief of declaration as sought for?

v) Whether the plaintiffs prove that they are entitled for the relief of permanent injunction as sought for?

vi) What order or decree?

After framing of the issues, the plaintiffs in order to prove their case examined Basavegowda-plaintiff No. 1 as PW.1. Exs.P1 to P20 were marked. On behalf of defendants, defendant No. 1-V.B. Basasvegowda was examined as DW.1. Exs.D1 to D12 were marked. The learned Trial Court upon hearing the arguments and upon appreciation of the evidence dismissed the suit by judgment and decree dated 09.10.2009. The appeal filed by the plaintiffs in R.A. No. 56/2009 came to be allowed on merits by judgment and decree dated 22.06.2011 by the Senior Civil Judge and JMFC, K.R. Pet.

Questioning the legality and correctness of the judgment and decree passed in R.A. No. 56/2009, this appeal is preferred by the defendants.

After hearing the learned counsel appearing for both the parties, the following substantial question of law is raised for disposal of the appeal;-

"Whether the Lower Appellate Court was justified in decreeing the suit of the respondents on the premise of the fact that the respondents/plaintiffs had locus standi to institute the suit in respect of the immovable property belonging to the State by eschewing the hakkupatra Ex.D1 to D3 issued by the Mandal Panchayat?"

I have heard the learned counsel appearing for the defendants/appellants and learned counsel for the plaintiffs/respondents.

During the pendency of the appeal, the learned counsel for the appellants/defendants produced copy of the resolution dated 24.12.1987 passed by the Panchayat along with an application under Order 41 Rule 27 of CPC as additional evidence. Since it is a relevant document for disposal of the appeal, same is admitted in evidence by allowing the application (I.A. No. 1/2012) and marked as Ex-P-23.

Learned counsel for the appellants/defendants would submit that the Appellate Court has committed an error by decreeing the suit though there was no evidence placed on record by the plaintiffs, and that the plaintiffs have not locus standi to file the suit and that the suit is bad for non-joinder of necessary parties.

On the other hand, learned counsel for the respondents/plaintiffs argued in support of the judgment and decree passed by the Appellate Court.

It is not in dispute that the schedule property forms out of Vasanthapura village Sy. No. 28 measuring 6 acres, a Government land reserved for Grama Tana. The schedule properties were granted to defendant Nos. 1 to 3 by issuance of Hakku Pathra by Mandal Panchayat. On the strength of Hakku Pathra, defendants are claiming their right over the schedule properties. The case of the plaintiffs is that defendant No. 4 by using his political influence created the so called Hakku Pathra marked as Exs.D1 to D3 in the names of defendant Nos. 1 to 3. But the fact remains that these Hakku Pathras have been issued by the Mandal Panchayat in favour of defendant Nos. 1 to 3. Plaintiffs have contended that they have been issued with an endorsement by Mandal Panchayat as per Ex.P18 that there is no such resolution dated 08.08.1988 for having granted schedule properties to defendant Nos. 1 to 3 by issuance of Hakku Pathra. But the defendants have now produced a copy of the resolution dated 24.12.1987 passed by the Mandal Panchayat, whereby the Panchayat resolved to grant Hakku Pathra in favour of as many as 30 persons including these defendant Nos. 1 to 3. In pursuance of resolution dated 24.12.1987 Hakku Pathra were issued on 08.08.1988. Thus, there is no substance in the contention of the plaintiffs/respondents that these Hakku Pathras have been created by the defendants. Moreover, the area of Sy. No. 28 is 6 acres. Out of that only 15 guntas of land has been granted to defendant Nos. 1 to 3 by issuance of Hakku Pathra Exs.D1 to D3. So long as these Hakku Pathras are not cancelled by the Mandal Panchayat, the plaintiffs have no locus standi to seek a declaration declaring that the schedule properties vest in Government. As rightly contended by the learned counsel for the appellants/defendants that the plaintiffs if at all ought to have impleaded the Government or the Panchayat as necessary parties to the suit. The plaintiffs have no semblance of right either over Sy. No. 28 measuring 6 acres or sites that have been granted in favour of defendant Nos. 1 to 3. There was no cause of action or locus standi for the plaintiffs to institute the suit. Further, the Court has not permitted the plaintiffs to file a representative suit. Therefore, on proper appreciation of evidence, the Trial Court rightly dismissed the suit. But the Appellate Court on re-appreciation of evidence wrongly allowed the appeal filed by the plaintiffs and decreed the suit. The approach of the Appellate Court is erroneous. The appreciation of evidence by the Appellate Court is perverse. For these reasons, the judgment and decree passed by the Appellate Court is liable to be set aside.

Accordingly, the appeal is allowed. The judgment and decree dated 22.06.2011 passed in Regular Appeal No. 56/2009 on the file of the Senior Civil Judge and JMFC at K.R. Pet is hereby set aside confirming the dismissal of O.S. No. 176/2000 by judgment and decree dated 09.10.2009 on the file of the Civil Judge (Junior Division) and JMFC, K.R. Pet.