Sri. P.M.Ramaswamy v. Sri.Ankanna Reddy

learned counsel for the Respondent.

2. The plaintiff is in appeal. It was the case of the plaintiff that he was the owner of the land in Sy.No.176/7 measuring 1 gunta of Banaswadi Village, K.R. Puram Hobli, Bangalore South Taluk. Originally, the land measured 13 guntas in Sy.No.176/7 and it was in the occupation of the plaintiff’s father and after his death, the plaintiff had applied for the grant of land to the Special Deputy Commissioner for Inams Abolition, Bangalore. It was pursuant to a grant made by the said authority that the petitioner was put in possession of 12 guntas of land and 1 gunta of kharab. Out of this 13 guntas, the 3 Railways had acquired 8 guntas of land including 1 gunta of kharab land and further, 2 guntas of land was acquired by Department of Defence and hence the plaintiff was left with one gunta of land. At the time of filing the suit, the suit property was defined as 176/7 of Banaswadi Village, K.R. Puram Hobli, Bangalore South Taluk and was shown as measuring 3 guntas. In view of the plaintiff having taken note of the acquisition proceedings and as there was a misunderstanding about the exact extent retained by the plaintiff, the extent was incorrectly shown as 3 guntas and thereafter, the same has been amended to be corrected as one gunta. During the course of the suit, a Court Commissioner had been appointed. The Assistant Director of Land Records, who was appointed as the Court Commissioner to demarcate and identify the entire suit property apart from the land acquired by the Railways and the Defence Department, it is the case of the petitioners that the Court Commissioner had inspected the property and not only measured the property claimed by the plaintiff but also the areas 4 that were acquired by the Railways and the Defence Department. It is thereafter that the plaintiff had proceeded to describe the suit property as measuring 2 acres 34 guntas and therefore, sought amendment of the extent of the property yet again as 2 acres and 34 guntas, which was permitted. It was the plaintiff’s case that the defendant who had no right over the property, had by use of force, sought to put a borewell on the said property and the plaintiff upon realising the action on the part of the defendant, had complained to the Jurisdictional Police and since the police did not afford any protection, the plaintiff was before the Trial Court seeking a declaration that he was the absolute owner of the suit property and for injunction restraining the defendant from interfering with the same. The defendant had entered appearance and had contested the suit and the defendant had raised a preliminary objection that the suit is camouflaged as a suit for bare injunction, whereas the suit in the nature of claims regarding boundaries fixed under the Karnataka Land Revenue Act, 1964 (hereinafter referred to as 5 ‘the Act’ for brevity) and to set-aside the orders passed by the competent officers with regard to the boundary marks and survey marks, which would take away the jurisdiction of the Civil Court, as it is completely barred under Section 61(2)(h) of the Act and therefore, the suit ought to be rejected on that preliminary ground. Insofar as the plaint averments are concerned, the averments were specifically met and the defendant denied the claim of the plaintiff specifically contending that the land shown as bearing Sy.No.176/7 measuring 3 guntas or 2 ¾ guntas was not at all in existence. Since the land in the said survey number was sub-divided as Sy.No.176/7A and Sy.No.176/7B as far back as in the year 1975 and the claim of the plaintiff to the effect that he was in possession of the land in Sy.No.176/7 from time immemorial, is a blatant falsehood, on the face of it. It was further denied that the land measuring 13 guntas was in his possession, though it was true that he had applied for grant of registration of occupancy rights and the Deputy Commissioner for Inams 6 Abolition had ordered in favour of the plaintiff to an extent of 11 guntas of land, the said grant was subject to phoding to be determined as to the actual extent in his possession. Thus, the grant was not an absolute grant but in effect, was actual possession of the land by the plaintiff and the plaintiff cannot claim kharab land as his own and it is a mischievous claim made by the plaintiff and admittedly, 8 guntas of land having been acquired by the Railways for the Salem Railway line project and though the defendant was not aware of 2 guntas of land having been acquired by the Defence Department, it is asserted that phoding work was done and the land in the said survey number was bifurcated as 176/7A and 176/7B and it was denied that any extent of land remained for the plaintiff to be in possession and enjoyment. Therefore, unless the plaintiff produced cogent material in support of his claim over any extent of land, vague reliance sought to be placed on dated revenue documents, in the face of subsequent events, was not relevant and therefore, could not have been considered by the 7 court below. The defendant has gone on to extensively plead his case insofar as the defendant being in possession of land in Sy.No.176/7B measuring 10 guntas, as was sought to be evidenced by independent documents.

3. On the basis of the said pleadings, the following issues were framed by the court below: “1. Whether the Plaintiff proves his title to the suit schedule property?

2. Whether the Plaintiff proves his lawful possession of the suit property?

3. Whether the Plaintiff proves that the defendant interfered with his possession of the suit property?

4. Whether the Defendant proves that this suit is not maintainable for the reasons stated in para 1 and 9 of the Written Statement?

5. Whether the Defendant proves that there is no cause of action for this suit?

6. Whether proper court fee is paid on the plaint? 8

7. What relief or order?” Issue Nos.1 to 3 were answered in the negative and in the light of which Issue Nos.4, 5, 6 and 7 were held did not arise for consideration. In deciding Issue No.1, the Trial Court has opined that it relates to the title of the plaintiff in respect of the suit property and the main contention of the defendant was to the effect that the plaintiff did not have any property identified as Sy.No.176/7, as it did not exist at all as on the date of the suit. Insofar as the claim of the plaintiff which rested on exhibits P1 to P4, the court below has examined the efficacy of those documents. Exhibit P1 was a public notice issued under Section 4(1) of the Land Acquisition Act dated 3.4.1972 by the Assistant Commissioner, Bangalore Sub-Division. It was a notification to acquire the property in Sy.No.176/7 and it indicated that in Banaswadi village, the land belonging to Ramaswamy and Abbaiah measuring an extent of 2 guntas were acquired for the activities of the MEG Centre, which is a part of 9 the Defence Ministry and that it only indicated that 2 guntas of land were acquired by the Government for the purpose of Defence Ministry and it would not throw any light on the dispute in question, except that Ramaswamy and Abbaiah may at best be khathedars and anubhavdars apart from other interested persons. Insofar as Exhibit P2 was concerned, that was a survey sketch. Insofar as Exhibit P3 is concerned, it indicated that land in Sy.No.176/7 measuring in all 23 guntas out of which 22 guntas were considered as khushki land, while 1 gunta was treated as phut kharab. Out of 22 guntas, 11 guntas were with Ramaswamy while other 11 guntas were with Lingamma. The name of Muniswamy was no doubt shown in respect of 22 guntas of land. But the entries made in the said document were shown as “pencil entries” and the court below has opined that it is a well-known principle that under the provisions of the land Revenue Act and Rules, a “pencil entry” would not confer any right, title or interest and they are tentative entries without any confirmation. Therefore, much 10 credence could not be attached to Exhibit P3. Insofar as Exhibit P4 is concerned, it was a certified copy of the proceedings before the Rural Civil Judge, Bangalore District and that out of land in Sy.No.176/7, the Land Acquisition Officer had acquired 7 ¼ guntas of land belonging to Ramaswamy. Further, that Ramaswamy had in all, 8 guntas of land in Sy.No.176/7 and out of which 7 and ¼ guntas having been acquired, there was no significant land remaining in the said survey number. Apart from the above, no other documents were placed before the Court in support of the cases at all. It is noted that the Ramaswamy who was examined as PW-1 had claimed in the course of cross-examination, that he had documents to show that 13 guntas of land was granted to him by the Deputy Commissioner for Inams Abolition and that he was in a position to produce the documents before the Court. But, no such documents had been produced. Further, the survey sketch that is produced was of the year 1976 but that sketch itself was not sufficient to establish title in respect of the 11 land claimed. Insofar as the Court Commissioner’s evidence in support of the plaintiff’s case was concerned, the court below has held that the Commissioner’s report indicates the land as Sy.No.176/7 and measurement have also been indicated conforming to the suit schedule. However, the defendant had produced Exhibit D8 to establish that as early as in the year 1986, the Sy.No.176/7 was bifurcated as 176/7A and 176/7B and therefore, the Commissioner’s report was doubtful. Since the Commissioner himself has admitted that he was not aware whether any such bifurcation was made of the suit property and the Commissioner having claimed that he had prepared a report on the basis of a Tippany and Atlas and the details of the same having not been produced by the Commissioner along with his report, the report has been negated. Hence the court has held that the report should not form the basis of a declaratory relief as sought for by the plaintiff and therefore, has opined that the material documents sought to be produced by the plaintiff would not suffice to sustain the relief of declaratory title and 12 has answered Issue No.1 against the plaintiff. Consequently, in the light of the identity of the property not having been established, the Issue Nos.2 and 3 have been decided against the plaintiff and has also opined that since the suit would have to fail on that findings, considering Issues 4 to 6 was found to be irrelevant and has accordingly, dismissed the suit while imposing costs of Rs.3,000/-. It is that which is under challenge in the present appeal.

4. The learned counsel for the appellant has raised several grounds. Firstly, that there was no dispute between the parties that land in Sy.No.176/7 measured 23 guntas including 1 gunta of phut kharab and that in terms of the partition, the plaintiff had got 11 guntas and defendant had got 11 guntas, in addition to 1 gunta of phut kharab land. In the light of the said admitted state of affairs, denial of the claim of the plaintiff has resulted in miscarriage of justice and the Court Commissioner’s report which clearly clinches the issue in favour of the 13 appellant, has been lightly negated by the Trial Court. Therefore, the learned counsel would seek to take this Court through the record to assert that there was adequate material evidence on record to sustain the claim of the plaintiff which was limited to the extent of 2 acres and ¾ gunta and hence seeks that the appeal be allowed and the judgment of the court below be set-aside.

5. While the learned counsel for the respondent seeks to justify the judgment of the Trial Court.

6. Without having to reiterate the very findings of the court below, as rightly pointed out by the court below, the plaintiff has sought to rely on four documents and the Commissioner’s report in support of his case. The said exhibits P1 to P4 would not be sufficient to establish title to the property, as rightly held by the court below. Insofar as the Commissioner’s report is concerned, in view of the admitted circumstance that the Commissioner had sought to rely on a 14 tippany and an Atlas which were not even produced before the Court and in the admitted circumstance that the Commissioner was not aware of the land having been bifurcated into 176/7A and 176/7B as early as the year 1986, the findings of the court below cannot be faulted and there is no merit in this appeal. The same stands dismissed. However, in the light of the above circumstances, since the petitioner has failed on the ground that he had not produced adequate documents in support of his case, it could not be said that the claim of the plaintiff was a mischievous one and therefore, costs imposed shall stand waived. Sd/- JUDGE KS