Karnataka High Court
Palaiah vs The State Of Karnataka on 17 July, 2026
Author: H.P.Sandesh
Bench: H.P.Sandesh
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RSA No. 419 of 2010
IN THE HIGH COURT OF KARNATAKA AT
BENGALURU
DATED THIS THE 17TH DAY OF JULY , 2026
R
BEFORE
THE HON'BLE MR. JUSTICE H.P.SANDESH
REGULAR SECOND APPEAL NO. 419 OF 2010
(DEC/INJ)
BETWEEN:
PALAIAH
S/O PALAIAH @ SANNAIAH
DEAD BY HIS LRS
1. SRI RANGANNA
S/O LATE PALAIAH
AGED ABOUT 46 YEARS
2. ANJANEYA
S/O LATE PALAIAH
AGED ABOUT 41 YEARS
3. SANNAPPA
S/O LATE PALAIAH
Digitally signed AGED ABOUT 36 YEARS
by DEVIKA M
Location: HIGH 4. SMT. GOWRAMMA
COURT OF W/O RAMAPPA
KARNATAKA AGED ABOUT 33 YEARS
ALL ARE AGRICULTURIST
R/AT KALVEHALLY VILLAGE
CHALLAKERE TALUK
CHITRADURGA DISTRICT-577 522.
...APPELLANTS
(BY SRI. G. BALAKRISHNA SHASTRY, ADVOCATE)
AND:
1. THE STATE OF KARNATAKA
BY ITS CHIEF SECRETARY
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RSA No. 419 of 2010
VIDHANA SOUDHA
BENGALURU.
2. THE DEPUTY COMMISSIONER
CHITRADURGA DISTRICT
CHITRADURGA-577501.
3. THE TAHASILDAR
CHALLAKERE TALUK
CHALLAKERE-577501.
4. MANDAL PANCHAYATH
DODDAULLARTHI
NOW VILLAGE PANCHAYATH
DODDAULLARTHI
BY ITS SECRETARY.
5. PALAIAH P
SINCE DECEASED
REPRESENTED BY LEGAL HEIRS
5(A) GADRI PALLAIAH
S/O PALAIAH
MAJOR
5(B) JAI PALAIAH
S/O PALAIAH
MAJOR
R/O KALEVAHALLI VILLAGE
CHALLAKERE VILLAGE-572522.
...RESPONDENTS
(BY SMT. MALA B. BHUTE, AGA FOR R1 TO R4;
R5(A) & R5(B) SERVED UNREPRESENTED)
THIS RSA IS FILED UNDER SECTION 100 OF CPC.,
AGAINST THE JUDGMENT AND DECREE DATED 7.11.2009
PASSED IN R.A.NO.104/2007 ON THE FILE OF THE CIVIL
JUDGE (SR.DN) CHALLAKERE, DISMISSING THE APPEAL
AND CONFIRMING THE JUDGMENT AND DECREE DATED
10.07.2007 PASSED IN O.S.NO.201/2001 ON THE FILE
OF THE CIVIL JUDGE (JR.DVN) & JMFC, MOLAKALMURU
AND ETC.
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RSA No. 419 of 2010
THIS APPEAL HAVING BEEN HEARD AND RESERVED
FOR JUDGMENT ON 09.07.2026 THIS DAY, THE COURT
PRONOUNCED THE FOLLOWING:
CORAM: HON'BLE MR. JUSTICE H.P.SANDESH
CAV JUDGMENT
Heard the counsel appearing for the appellants and
also the learned AGA appearing for respondent Nos1 to 4.
Respondent No.5(A) and 5(B) though served, did not
choose to appear before the Court.
2. This Regular Second Appeal is filed against the
judgment and decree of dismissal of suit filed for
declaration and injunction in O.S.No.201/2001 and
confirmation made by the appellate Court in RA
No104/2007. The suit was filed in the year 1990
numbered as O.S.No.29/1990 on the file of Principal
Munsiff Court, Chitradurga and later it was transferred to
Civil Judge Junior Division, Challakere and re-numbered as
OS No.147/1994 and later numbered as 201/2001.
3. The brief facts of the case are that the
plaintiffs have filed suit against the defendants for seeking
the relief of declaration and permanent injunction. The
case of the plaintiffs is that, plaintiffs is the owner in
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RSA No. 419 of 2010
possession and enjoyment of the suit schedule properties
and the same is an ancestral property of the plaintiffs and
the same has been allotted to him during partition dated
12.01.1989. The plaintiff is paying land revenue to the
government. In the land revenue records, the name of
the plaintiffs and their father were appearing and the
plaintiff and his father are in actual possession and
enjoyment of the suit schedule property and after the
death of plaintiff’s father the plaintiffs is in exclusive
possession of the suit land since from the date of
partition. In the suit landed property, the plaintiff’s
father has built his residential farmhouse in the eastern
portion and he has also located cattle shed, sheep pens.
The plaintiffs has orally permitted three Muslim persons
and one Chillekyata family to put up temporary huts on
the northern portion of scheduled land since 10 years, the
remaining land is cultivated by the plaintiffs. The plaintiffs
have left some portion towards eastern side for the
purpose of grazing his cattles. There is a kharab of only
26 guntas and the remaining land has been under
cultivation by the plaintiffs. The katha of the schedule land
continued in the name of father of the plaintiffs, as he was
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elder brother among his brothers. The name of the
plaintiffs is continued in cultivator’s column as per his
physical position. The fifth defendant is harassing the
plaintiffs by using political position, due to ill will and
managed to influence the third defendant to make an
illegal entries in mutation, phanies etc., to the effect that
9 acres of land out of Sy.No.217 in the suit schedule land
have been acquired by government during 1938-39. This
entry has been made by the third defendant by passing an
order on 25.11.1988 arbitrarily behind the back of the
plaintiffs and without his knowledge. In the month of
August 1989 when the fifth defendant and his followers
threatened the plaintiffs to dispossess in the suit schedule
land, then the plaintiffs rushed to the Taluk Office and
Village accountant and obtained copies of RTC and then
only came to know that third defendant in collusion with
his subordinate officers has altered the extent of kharab in
revenue record from 26 guntas to 5 acres 27 guntas
without any basis at the instigation of fifth defendant,
neither any part of suit land has been acquired by the
government or by any authority at any point of time. So
the entries made out by third defendant is illegal.
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Moreover, the government has not at all taken possession
of any of the land belongs to the plaintiffs during 1938-39.
No land acquisition proceedings were held in respect of
suit schedule property. So the plaintiff’s father and the
plaintiffs have perfected their title to the alleged 9 acres of
land which is portion of schedule land being in continuous
uninterrupted peaceful possession of the land over a
statutory period to the knowledge of the Government and
all publics, as such if there was any title of the
Government, in the schedule land same is extinguished by
law of adverse possession. Hence, the plaintiffs filed the
present suit against the defendants for the relief of
declaration and permanent injunction.
4. In pursuance of suit summons, defendant
Nos.1 to 3 appeared through AGP and defendant Nos.4
and 5 appeared through their counsel before the trial
Court. Defendant Nos. 1 to 3 in their written statement
contended that plaintiff is not at all the owner and in
possession and enjoyment of the suit schedule property.
They have also denied that the suit schedule property is
the ancestral property of the plaintiffs and it has fallen to
the share during the partition dated 12.01.1989. It is
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contented that an extent of 9 acres of scheduled land had
been acquired by the government in 1938-1939 itself, as
can be seen from the entry in the index of land of
Kaluvehally Village at Sl.No.841. The houses mentioned
by the plaintiffs have been constructed in the acquired
portion of the schedule land and not in the remaining
agricultural land itself. Further, it is contended that the
entries in the RTC register, mutation and other village
accounts with regard to the acquisition of 9 acres of land
for construction of houses are quite in order but, had been
only left out by oversight, the order of the Tahasildar and
bearing Order No.LAC.SR.21/88-89 need not have been
informed to the plaintiffs. Since it was not a fresh order,
but only an incorporation of the entries ordered to be
made during the year 1940 vide Sl.No.41 in R.R.5
registers. Further, the defendant Nos.1 to 3 denies all the
allegations made out in the suit plaint as false, frivolous
and not maintainable under the law. Hence, they prayed
for dismissal of suit.
5. Further, defendant Nos.4 and 5 in their written
statement denied all the allegations made in the suit
plaint as false, frivolous and vexatious and there is no
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cause of action and the suit is hit by Section.304(2) of the
Karnataka Zilla Parishad Act. It is contended that the suit
is not properly valued and the government handed over
the possession of suit land to the extent of 9 acres for the
purpose of Gramatana to the Village Panchayat and
contend that the plaintiffs is not at all entitled to any
relief. 17 of Kaluvehally Village measuring 17 acres and
out of the same, the Government has acquired 9 acres of
land for the purpose of Gramatana and handed over the
possession of the land to the Village Panchayath. In the
said 17 acres, 5 acres and 27 guntas is kharab land. In
the kharab land there is a big granite quarry and it
occupies an area of 2 acres and in remaining portion there
is a road under thangadake plants. Any how kharab land
is the government property. The plaintiffs is in possession
of only 2 acres 13 guntas, wherein he erected farmhouse
and also he permitted 3 muslims and 2 chillekyathana
families to construct huts. Totally he used 2 acres 13
guntas for non agriculture purpose. After taking
possession of the land by the Village Panchayath, the
Village Panchayath granted 20 sites to the different
persons. The persons who were granted sites built their
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RSA No. 419 of 2010
houses. The remaining site is in the control of Mandal
Panchayath. Out of 9 acres acquired as used as
Gramatana, now the plaintiffs on the basis of false entries
in revenue records is trying to cultivate Gramatana
property and he has no right over the Gramatana land to
cultivate it. The plaintiff has no title, right or possession
over the suit schedule property.
6. The trial Court considering the pleadings of the
plaintiffs as well as the written statement of defendants,
framed in total 15 issues which reads as follows:
a. Whether the plaintiffs proves that he is the
owner in possession and enjoyment of the suit
schedule property?
b. Whether the plaintiffs proves that the suit
property is the ancestral property of himself
having allotted to his share on partition
between the plaintiffs and his cousins that
took place on 12.01.1989?
c. Whether the plaintiff proves that neither the
suit schedule land nor any part of it has been
acquired by the Govt., or any authority at any
point of time?
d. Whether the plaintiff proves that the
defendant No.3 has not followed the
procedure as contemplated in Land Revenue
Act?
e. Whether the plaintiffs proves that no
compensation is paid to him, or ancestors or
predecessors, and no possession of suit land
was taken by the Govt.,?
f. Whether the plaintiffs proves that he has
perfected his title to the alleged 9 acres of land
which is the suit schedule land by way of
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continuous uninterrupted, adverse, peaceful
possession?
g. Whether the plaintiff proves that defendants
are attempting to interfere and obstructing his
peaceful possession?
h. Whether the plaintiff is entitled for permanent
injunction?
i. Whether the plaintiff proves that he is entitled
for cancellation of entry in mutation No.29/88-
89 passed by defendant No.3 in AD CR 21/88-
89 dated 25.11.1988?
j. Whether the defendant Nos. 1 to 3 proves that
the suit is barred by time and not maintainable
in view of KLR Act?
k. Whether the defendants prove that the
plaintiffs is in possession of only 2 acres 13
guntas in the suit schedule property?
l. Whether the defendant Nos.4 and 5 proves that
the Government handed over the possession in
suit land to an extent of 9 acres for the purpose
of Gramatana to the Village Panchayath?
m. Whether the defendant Nos.4 & 5 prove that
the suit is hit by Section 304(2) of Karnataka
Zilla Parishat Act?
n. Whether the defendant Nos.4 & 5 prove that
the suit is not properly valued, court fee paid is
insufficient?
o. What order and decree?
7. The plaintiffs in order to prove his case
examined plaintiffs No.1 (a) got examined himself as
P.W.1 and also got examined three more witnesses and
got marked documents as Exs.P1 to P33. Defendants
neither adduced any evidence nor produced any
documents. The trial Court, having considered both oral
and document evidence, while answering all the issues as
negative, except answering Issue No.10 in partly
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RSA No. 419 of 2010
affirmative and partly negative. Whether the defendant
Nos.1 to 3 proves that suit is barred by time and not
maintainable in view of Karnataka Land Revenue Act and
answered the issue No.13 accordingly. The suit is hit by
Section 304(2) of Karnataka Zilla Parishath Act.
8. Being aggrieved by the said order, the
plaintiffs preferred an appeal in RA No.104/2007. The
appellate Court having considered the grounds urged in
the appeal memo, the following points were framed for
consideration:
I. Whether the judgment and decree passed by
the trial Court is perverse, capricious, arbitrary,
and it calls for interference by the trial Court?
II. What order?
The said points for consideration are also answered
in negative and confirmed the judgment of the trial Court.
Hence the present Regular Second Appeal is filed before
this Court.
9. The main grounds which have been urged in
this second appeal is that both the Courts have committed
an error and though the trial Court has raised 15 issues
touching the issue with regard to the ownership and
possession and whether this land was acquired by the
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Government and whether the order passed by the
Tahasildar is without following the procedure under the
Karnataka Land Revenue Act, as regards whether the
compensation was paid to the plaintiffs, and also the pay
regarding adverse possession paid to the plaintiffs, and
also whether the suit is barred by limitation and also
under the Karnataka Land Revenue Act and also whether
the defendants have handed over the possession of the
suit land to an extent of 9 acres in favour of Grama
Panchayath and whether the suit is hit by Section 304(2)
of Karnataka Zilla Parishad Act. The lower appellate Court
has committed an error in framing one issue and must
judge upon whether all the issues involved between the
parties which have been framed by the trial Court and
nothing is discussed in the first appellate Court and the
first appellate Court being the Statutory appellate Court
ought to have considered the question of fact and
question of law and failed to exercise the powers under
Order 41 Rule 31 of Code of Civil Procedure. The lower
appellate court has failed to discharge its duties as a Court
of first appeal and also failed to consider the document at
Exs.P1 to P3 and oral evidence of P.W.1 to P.W.4 and only
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RSA No. 419 of 2010
repeated the judgment of the trial Court in the appeal.
None of the documents were considered and discussed by
the appellate Court. It is contented that the Courts below
have wrongly held that plaintiffs has pleaded adverse
possession and therefore, the plaintiffs has no title and it
amounts to admission of the title of the defendants and it
is contented that plea of adverse possession is raised as
alternative plea. The defendants are to establish in the
acquisition of property and they continued in ownership
and possession openly throughout the statutory period.
10. The counsel also vehemently contended that
when the issue was framed based on the contention of
defendant Nos.4 and 5 that suit is hit by Section 304(2) of
the Karnataka Zilla Parishad Act and ought to have been
considered the same by the first appellate Court but not
considered the same. The counsel also vehemently
contended that the plea taken in the written statement of
defendant No.3 is that an extent of 9 acres of schedule
land was acquired by the government for construction of
houses during 1938-39 and also property was handed
over to the Government. To that effect, nothing is placed
on record except the pleading and not produced any
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document having acquired the property by the
government. No such Notification under Section 4 and 6
of the Land Acquisition Act was issued and no mahazar is
produced to show that possession of the land was taken to
government and so also possession was handed over to
the Village Panchayath. The Counsel would also
vehemently contend that under what provision of law the
land was acquired is not even recorded and whether it was
acquired by the State Government or whether it was
acquired by the Central Government and what purpose is
also not stated therein and only it relies upon revenue
records which have been manipulated documents. The
Courts below have totally misunderstood the entries in Ex.
P18. Ex.P18 only shows that 9 acres of land is ordered to
be converted for non-agriculture purposes. Door number
are 340/38-39 is forged and nothing establishes the same.
Ex.P18 on the other hand shows that plaintiff is the owner
of the suit schedule property and it is an ancestral
property. Ex.P19 is the index of land shows that the
plaintiff is the owner of entire 17 acres in Sy.No.217 and
mode of acquisition is shown as ancestral property. The
acquisition of 9 acres is not noted, but doubtfully shown
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RSA No. 419 of 2010
without referring to any acquisition by way of any
Notification or any Government order. The Court below
have failed to note that Ex.P12, the mutation register
showing No.LAQ SR:21/88-89 dated 25.11.1988. It has
been filed without any basis. The same was recorded in
the year 1988 that the land was acquired. And such entry
was made without any notice to the plaintiffs. In the
written statement, defendant Nos.1 to 3 have admitted
that no notice was issued to the plaintiffs. The mutation
entry Ex.P12 goes contra to the plea of defendant Nos. 1
to 3 that in the year 1938-39, the land was acquired.
11. It is further contended that Ex.P15 i.e, the
record of rights entries for the year 1985-1986 to 1987-
1988, Ex.P16 -RTC entries for the year 1980-81 to 1984-
85, Ex.P17- the records of rights entries for the year
1985-86 to 1988-89 constantly shows that plaintiffs is the
owner of the land in Sy.No.217 measuring 17 acres. Patta
is also shown as private ownership land. Tax paid receipt
has also produced as Ex.P14 and also patta book. The
legal notice was also issued by the plaintiffs as per Ex.P1
and the same was served by the defendants as per Exs.P2
to P11. It is contented that the Courts below ought to
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RSA No. 419 of 2010
have held that plaintiff has proved his actual possession
having regard to the entries in Exs.P15 to P20. And also
there is a presumption under Section 133 of the
Karnataka Land Revenue Act. The report of the
Commissioner at Ex.P30 and Ex.P31 clearly establishes
the possession and enjoyment of the plaintiffs. However,
the Court’s below have discarded the report of the
Commissioner at Ex.P32 on the ground that the
Commissioner has not reported that the plaintiffs is in
possession of the suit property and no such direction was
given to submit regarding the possession. In the report
also, it is stated by the villagers that western portion is
cultivated by the plaintiffs and there are signs of land
being divided into sites. The Courts below has failed to
note that plaintiff has prayed for declaration of his title.
On a title being declared, the revenue authorities are
bound to change the entry as per the declaration of civil
court by virtue of Section 135 of Karnataka Land Revenue
Act.
12. Having considered the grounds which have
been urged, this Court while admitting the second appeal
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on 10.02.2021, has framed the following substantial
question of law:
(i) Whether the suit filed by the plaintiffs is
covered under the proviso to Section 135 of the
Karnataka Land Revenue Act? If so, whether the
judgment and decree passed by the Courts below
based exclusively on the revenue entries could
be sustained in law and in facts of the case?
13. The counsel has reiterated the grounds urged
in the appeal memo during his oral submission before the
Court. The counsel also vehemently contented that Sy.No.
217 to the extent of 17 acres is an ancestral property of
the plaintiffs. It is the specific case of the plaintiffs that at
the instance of defendant No.5, a mutation was came into
existence in the year 1988 stating that property is
acquired by the Government. Further, it is contended
that the suit is filed for the relief of declaration and
permanent injunction and before filing the suit, notice was
given in terms of Ex.P1 against the government and no
reply was given. Though filed the written statement but
not entered witness box by any of the defendant Nos. 1 to
5 and regarding acquisition is not substantiated. The only
claim is based on the mutation that the suit is not
maintainable. The counsel would vehemently contended
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that Exs.P15 to P20 are the relevant documents and also
Ex.P19 clearly discloses that it is an ancestral property
and index of land clearly discloses the same.
14. The counsel in support of his argument relies
upon the judgment of the Apex Court in the case of
Vidyadhar Vs. Mankikrao reported in 1999
AIR(SC),1441, in paragraph No.16, the discussion was
made that where a party to the suit does not appear in
the witness box and states his own case on oath and does
not offer himself to be cross examined by the other side, a
presumption would arise that case set up by him is not
correct as has been held in a series of decisions passed by
the various Courts and Privy councils, beginning from the
decision in Sardar Gurbaksha Singh V. Gurdial Singh
reported in AIR 1927 PC 230. This was followed
throughout by different Courts, i.e. the High Courts and
also the Apex Court.
15. The counsel also in his argument relies upon
judgment in the case of Sri Bhimeshwara Swami Varu
Temple vs. Pedapudi Krishna Murthi and Others,
reported in 1973 AIR (SC)1299 and brought to the
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notice of this Court paragraph No.5 wherein the discussion
was made that name of the appellant is recorded as a
ryot” in 3 entries in the revenue account and Exhibits
which have been marked almost the entire revenue record
is in favour of the appellants. The long course of entries
which were consistently in favour of the Archakas cannot
be ignored in preference to the entries in favour of the
temple for a solitary year.
16. The counsel also relied upon the judgment in
the case of Sadashlvalah Vs. State of Karnataka
reported in 2003 Supreme (Kar) 715 and referring to
paragraph No.30 in his argument that the land acquisition
officer has declined to pass the award and yet another
ground that the land involved in the WP Nos.7540 and
9155-9204/2001 is a kharab land and therefore, it does
not belongs to the petitioners. In this regard, it is
necessary to know what a kharab land is and what are the
rights which flow. Kharab land is so called because it is
not a cultivable and is classification made for purposes of
revenue exemption. Kharab land is also capable of
ownership and cannot be regarded as an adjunct to
cultivate land which gets transferred along with the
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cultivable land. Only for the purpose of assessment, the
uncultivable portion of the land or phut kharab portion of
the land is excluded from consideration on the ground that
it is uncultivable. But it does not cease to belong to the
owner of the survey number. And the expression ‘phut
kharab’ is also explained in the Gupte’s book on the
Bombay Land Revenue Code. The pot kharab is meant
barren or uncultivable land included in an assessed survey
number and includes any land comprised in a survey
number and also the same may be classified as Kharab A
unfit for agriculture at the time of survey including the
farm buildings and threshing flours of the holder; B, that
which is not assessed because, (i)it is reserved or
assigned for public purposes. (ii) it is occupied by a road
or recognized footpath or by a tank or stream used by
persons other than the holders for irrigation, for drinking
or domestic purposes, and (iii) also used as burial ground
or cremation ground. (iv)The same is assigned for villager
potteries.
17. The counsel also relies upon the judgment of
the Apex Court in the case of Vidya Devi v. State of
Himachal Pradesh and Ors. reported in AIR 2020
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Supreme Court 4709 brought to notice of this Court
paragraph Nos. 10.3, 10.4 and 10.6 wherein it is also held
that appellant could not have been forcibly dispossessed
of her property without any legal sanction and without
following due process of law, and depriving her payment
of just compensation, among being a fundamental right on
the date of forcible dispossession. The contention of the
State that the appellant or her predecessors had “orally”
consented to the acquisition is completely baseless. We
find complete lack of authority and legal sanction in
compulsively divesting the appellant of her property by
the State. But also an observation is made that we are
surprised by the plea taken by the State before the High
Court, that since it has been in continuous possession of
land for about 42 years, it would tantamount to “adverse”
possession. The State being a welfare State cannot be
permitted to take the plea of adverse possession which
allows a trespasser i.e. a person guilty of a tort, or even a
crime, could gain legal title over such property. The State
cannot be permitted to perfect its title over the land by
knocking the doctrine of adverse possession or grab the
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property of its own citizens, as has been done in the
present case.
18. The counsel referring these judgments would
vehemently contend that these judgments are aptly
applicable to the case on hand. Admittedly the property
belongs to the plaintiffs and the same is an ancestral
property. Though took the specific contention that
property was acquired in the year 1938-1939, nothing is
placed on record. But surprisingly in 1988, a mutation at
Ex.P12 came into existence and the same is baseless and
no sanction of either acquisition or payment of
compensation to the original owner. As such, both the
Courts have committed an error and the substantial
question of law invoking Section 135 of the Karnataka
Land Revenue Act requires to be exercised for correction
of revenue entries and also the Judgment and Decree by
the Courts below exclusively on the revenue entries is not
sustainable in the eye of law. Hence, it requires reversal
of the judgment and decree.
19. Per contra, the counsel appearing for the
respondent Nos.1 to 4/State would vehemently contend
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that the plaintiff has to prove title and possession. Except
showing the RTC entries, nothing is placed on record. The
counsel would also contend that even Ex.P17 to Ex.P20
discloses that land was acquired by Government and to
that effect there may be an entry. It is also contended
that suit is barred under Section 161 and there cannot be
any civil suit and also the stray entry cannot be
considered. The commissioner report also goes against
the plaintiffs that plaintiff is not in possession. In the
cross-examination, plaintiff admits that there are huts and
also it is a government property and is proved. The
counsel would submit that when the relief is sought for
the declaration it should be within the purview of Section
34 of Specific Relief Act and without claiming the recovery
and possession of the suit is not maintainable. Hence, the
remedy sought before the Court is not available. It is clear
that huts are in existence and evidence of witnesses are
contrary to each other. Both the trial court and appellate
Court taken note of the material evidence and also the
admission on the part of witnesses. Even the trial Court
also extracted the admissions on the part of the evidence
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of plaintiffs as well as witnesses. Therefore, it does not
require any interference.
20. In reply to his argument, counsel for the
appellants would contend that to substantiate Ex.P12
there is no any Notification or any payment. The
documents are very clear that property is ancestral
property of the plaintiffs and RTCs’ even prior to the
changing of revenue entries from 1980 onwards till the
changing of entry as per Ex.P12, property stands in the
name of the plaintiffs till 1988, no entries are made. Even
while changing the mutation also no notice was given to
the plaintiffs and it is very clear that plaintiffs claims total
extent of 17 acres and index of land also clearly discloses
the ownership and hence the contention of learned AGA
that plaintiffs fails to prove the title cannot be accepted.
21. Having heard the respective counsel, it is the
specific claim of the plaintiffs that plaintiff is the owner of
the suit schedule property to the extent of 17 acres as
clearly described in the plaint. The prayer is also very
clear that declaring the plaintiff is the owner and in
possession and enjoyment of the suit schedule land as
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against defendant Nos.1 to 3 and also prayed to decree
against defendant Nos.1 to 3 to cancel the entry in
mutation in M.R.No.29/88-89 passed by the third
defendant in LAC SR. 21/88-89 dated 25.11.1988 and also
grant the relief of permanent injunction. Having taken
note of the plaint averments, it is very clear that suit
schedule property is an ancestral property of the plaintiffs
and it has been allotted to the share of the plaintiffs in the
partition dated 12.01.1989 and no doubt, in order to
establish that property was allotted to the plaintiffs in
terms of the partition is not established by placing any
document before the Court. It is the specific case that
father of the plaintiffs has built a residential farmhouse in
the eastern portion of the suit land and he has also
located cattle shed, sheep, pens and orally permitted the
Muslim persons, three Muslim persons and one
Chillekyataha families to put up temporary huts on the
northern portion of the suit land since 10 years and hence
it is very specific that they have given the permissive
permission and the same is also evident from the report of
the commissioner. The commissioner also says that there
were some huts in the land. But the observation made by
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RSA No. 419 of 2010
the trial Court that plaintiffs is not in possession cannot be
accepted and report is also very clear that plaintiffs is
cultivating the land and some villages of surrounding area
also spoke on the same. And hence the very approach of
the trial Court that the Commissioner’s report is not
supporting the claim of the plaintiffs cannot be accepted.
The specific case of the plaintiffs that at the instance of
the defendant No.5 only, these entries are made. That is
after he became the Pradhan of the Mandal Panchayath,
who is having ill-will and party position in the village and
he started to harass the plaintiff. When the claim was
made in the year 1988, within a year, that property
belongs to the defendants, then the plaintiffs went and
verified the records and came to know that a false entry
has been made. It is specific case that instead of 26
guntas, an entry is made to the extent of 5 acres 27
guntas that it is a kharab land and that claim was made
without any basis and though it is contended that land
was acquired in the year 1938-1939, there were no any
proceedings of acquisition or any payment of
compensation to the plaintiffs. When the claim was made
that 9 acres of land was acquired, But specific contention
– 27 –
RSA No. 419 of 2010
was taken in the plaint that the plaintiffs have perfected
their title which is a portion of scheduled land by being in
continuous and uninterrupted possession and counsel
would also vehemently contend that the said plea is only
an alternative plea made with regard to the when the
claim was made to the extent of 9 acres land was
acquired.
22. It has to be noted that Ex.P19 is the index of
land which clearly discloses that property stands in the
name of the plaintiffs and subsequently entries are made
in Ex.P19 also that 9 acres was acquired. But this
document clearly discloses that nature of the property is
an ancestral property belongs to Palaiah, S/o. Sannaiah.
The same is also to the extent of 17 acres of land
including the kharab and the same is a kushki land. But in
this document, karab is shown as only 26 guntas as
contended by the plaintiffs. The total extent is mentioned
as 16 acres and 14 guntas and subsequently, it is
mentioned as 5 acres and 27 guntas as kharab and
remaining lands are cultivated by plaintiffs. But claim
made by the government is that 9 acres land was
acquired. The total extent is very clear that it was 17
– 28 –
RSA No. 419 of 2010
acres of land. It has to be noted that no doubt there is an
entry of 9 acres was acquired. Ex.P12 discloses that a
mutation came into existence on 25.11.1988. As rightly
pointed out by the counsel appearing for the plaintiffs that
was made in the year 1988 referring to LAC.SR 21.5.1988
and there was no such proceedings was taken place and
no notice was issued to the plaintiffs as contended by the
plaintiffs. It has to be noted that when the plaintiff has
admitted that property belongs to the plaintiffs and also
defendant Nos.3 and 5 also contend that plaintiffs are in
possession only in the remaining extent of the land in the
written statement. Hence, it is clear that property belongs
to the plaintiffs only. Ex.P15 to P20 clearly discloses it is
an ancestral property in column number 10 and also in
column number 9 shown the name of Palaiah S/o. Palaiah
@ Sannaiah and even in cultivation column in column
number 11 also shown as Palaiah is cultivating the land.
These documents of Exs.P16 and P17, even prior to the
making of entry in terms of Ex.P12, from 1980 onwards
till 1988, that in column number 9, 10, 11, the name of
the plaintiffs is shown and even Ex.P18, it is very clear
that the extent of land is 17 acres and kharab is shown as
– 29 –
RSA No. 419 of 2010
5 acres only and the same is shown as the ancestral
property. When the claim of the plaintiffs is that it is an
ancestral property and the same belongs to plaintiffs.
There is no any documentary evidence is placed before
the Court by the defendants claiming that this property
was acquired. In one breath, they claims that it was
acquired in the year 1938, the same is not substantiated
by any documentary proof. Apart from that when the
document of Ex.P12 came into existence in the year 1988
and the same is not based on any document with proof of
any acquisition, it is also important to note that when the
defendant files the written statement by contending that
they acquired portion, but did not enter into the witness
box to substantiate the same. As such, the judgment
relied upon by the Apex Court referred in Vidhyadhar’s
case (supra) is very clear that person who pleads must
enter into the witness box and withstand the pleadings
and the same is not done and hence the said judgment is
aptly applicable to the case on hand the claim that
property acquired is not established.
23. Having considered the document at Ex. P18, it is
very clear that the suit schedule property is an ancestral
– 30 –
RSA No. 419 of 2010
property of Palaiah, S/o. Palaih @ Sannaiah, and these
plaintiffs are legal heirs of the plaintiff on account of death
of original plaintiff. It is also the specific case of the
plaintiff that this property is neither acquired by the
government nor paid any compensation and to that effect
also not placed any material and even not stepped into
witness box. The trial Court has erroneously answered
Issue Nos. 1 to 3 in negative and even defendant No.3
has not followed the procedure as contemplated under the
Provisions of Karnataka Land Revenue Act, 1964. When
the compensation is not paid to the plaintiff or to his
ancestors or to his predecessors and no possession was
taken by the government in accordance with law by
acquisition, the trial Court ought not to have answered
Issue Nos. 4 to 5 as negative and no doubt the plaintiff
has contended that He is in continuous uninterrupted
adverse possession. But the claim was made that when
portion of the property to the extent of 9 acres was
acquired, but no such acquisition proceedings or final
notification Is produced as rightly pointed out by the
counsel.
– 31 –
RSA No. 419 of 2010
24. The trial Court fails to take note of the very
pleading of the plaintiff that the suit schedule property is
an ancestral property of himself having allotted to his
share on partition between the plaintiff and his cousins.
That took place on 12.01.1989. Further, the plaintiff has
also taken another contention that he has perfected his
title to the alleged 9 acres of land which is the suit
schedule land by way of continuous uninterrupted adverse
peaceful possession as alternatively pleaded in view of
claim of Government but acquisition not established.
25. It is the contention of the plaintiff that he is in
actual possession and enjoyment over the suit schedule
property and defendants causing obstruction and in view
of obstruction by the defendants the plaintiff has filed a
suit for relief of permanent injunction. What made the
defendants to interfere with the possession of the property
and also got the mutation entry bearing number mutation
in MR No. 29/88-89 passed by defendant No.3 in LAC.CR
21/88-89 dated 25.07.1988 and no proceedings was
taken place and even no revenue entry is effected as the
basis of acquisition.
– 32 –
RSA No. 419 of 2010
26. The trial Court also answers other issues and
comes to the conclusion that the suit is not maintainable
in view of Karnataka Land Revenue Act and the approach
is very erroneous and even defendants have admitted that
plaintiff is in peaceful possession over the suit schedule
property and the commissioner report also shows the
same and also comes to the conclusion that there is no
procedure established in the eye of law either for
acquiring or for disposition of plaintiffs from the suit
schedule property except the revenue entries and no
supporting documents of taking of possession by
conducting any mahazar. When such being the case, the
trial Court ought not to have answered the issues number
11 and 12 in negative.
27. The trial Court also committed an error in
answering Issue No. 13. Wherein, the suit is hit by Section
304 of the Karnataka Zilla Parishad Act and the said
approach is erroneous and when there is no acquisition or
handing over the possession in favour of defendant no. 4
and 5, the question of invoking Section 304(2) does not
arise.
– 33 –
RSA No. 419 of 2010
28. This Court would like to refer to the provisions
of Karnataka Land Revenue Act in Section 135, which
reads as follows:
“135. Bar of suits. No suit shall lie against
the State Government or any officer of the
State Government in respect of a claim to
have an entry made in any record or register
that is maintained under this Chapter or to
have any such entry omitted or amended,
provided that If any person is aggrieved as
to any right of which he is in possession, by
an entry made in any record or register
maintained under this Chapter, he may
institute a suit against any person denying or
interested to deny his title to such right for a
declaration of his right under Chapter VI of
the Specific Relief Act, 1877, and the entry
in the record or register shall be amended in
accordance with any such declaration.”
29. Having perused the proviso of Section 135 of the
Karnataka Land Revenue Act and there is bar for filing of suit
that no suit shall lie against the State Government or any
officer of the State Government in respect of a claim to have an
entry made in any record or register that is maintained or any
such entry omitted or amended provided that if any person is
aggrieved as to any right of which he is in possession, by an
entry made in any record or register maintained, he may
institute suit against any person denying or interested to deny
is title to such right for a declaration of his right. Hence,
– 34 –
RSA No. 419 of 2010
proviso is very clear that the plaintiff can seek the relief of
declaration with regard to particular entry.
30. This Court would like to rely upon the judgment of
the Full Bench of this Court dated 24.01.2020 in the case of
Jayamma vs. State passed in Writ Petition
No.6872/2013, wherein while invoking Section 135 of
Karnataka Land Revenue Act, has held that a party can
approach the Civil Court by filing a suit against any person
denying or interested to deny his title for the relief of
declaration of his right, to establish his private right and any
declaration made by the competent Civil Court will be binding
on the private parties as well as authorities concerned, who
pass the orders under Section 136(2) and (3) of the Karnataka
Land Revenue Act. It is well settled that any adverse finding
recorded either by the Assistant Commissioner or Deputy
Commissioner with regard to record of rights in respect private
parties or any entries exercising their power under the
provisions of Section 136, it shall not be binding on the Civil
Court as well as any decision made by the authorities under the
Land Revenue Act. The authorities have no right to decide the
title but only the Civil Court can declare the entries made are
– 35 –
RSA No. 419 of 2010
not with competent authorities even if any mistake is made, the
same can be corrected by the Civil Court.
31. This Court would also like to rely upon the judgment
of the Division Bench of Apex Court in the case of Althaf
Ahmed vs. State of Karnataka, Revenue Department and
Others passed in WA No.713/2013 dated 11.03.2024,,
wherein while invoking Section 135 of the Karnataka Land
Revenue Act, held that any entry made in the record of right or
register maintained by the Revenue Authorities in respect of
any right over immovable property with subject to declaration
which may be given by the Civil Court. Though proviso
contemplates that if any person is aggrieved as to any right of
which he is in possession, by an entry made in any of the
record or register maintained, he may institute a suit against
any person who denies or is interested to deny his title to such
right, for declaration of his right. The entry in the record or in
the register shall be amended in accordance with such
declaration which may be given by the Civil Court.
32. This Court would also like to rely upon the judgment
rendered in the case of Dundappa vs. Smt. Sundrawwa and
Another reported in ILR 2017 KAR 4105 while invoking
– 36 –
RSA No. 419 of 2010
Section 135 of the Karnataka Land Revenue Act, held that
proviso to Section 135 enables the person who is aggrieved as
to any right of which he is in possession by an entry made in
any record or register maintained by the Revenue Authorities
under Chapter 11 of the Act, can institute a suit against any
person denying or interested to deny his title, for the relief of
declaration of his right. Therefore, the suit of the plaintiff
before the Court below was maintainable.
33. The relief is sought in respect of entries made
in the revenue record, particularly Ex.P12 and also in
Ex.P19, i.e. index of land, and having perused the index of
land also, it is very clear that the suit schedule property is
an ancestral property and no basis to make an entry in
the index of land that belongs to Government and no
acquisition at all and also the entry is not in consonance
with any acquisition in accordance with law. The judgment
relied upon by the counsel for the appellant in AIR 1973
(supra) particularly in paragraph No.5, in Bhimeshwara
Swami‘s case, it is also very clear that the documents
for a long period stands in the name of family of plaintiff
and in favour of the appellants herein and the same
cannot be ignored. The judgment of the Apex Court in
– 37 –
RSA No. 419 of 2010
1999 AIR SCC 1441 in Vidyadhar’s case is also very
clear particularly in paragraph 16 that claim is not
substantiated by entering the witness box and also the
judgment of the Apex Court in 2003 KAR 715 particularly
in paragraph No.30, that no acquisition and not made any
payment of compensation. This Court while dealing with
the matter held that the kharab land is concerned that
belongs to owner if it is not cultivable and there is no
dispute with regard to kharab land is ‘A’ kharab-stone
found. But it is the specific case of the plaintiff that the
kharab land is 26 guntas but later on, made as 5 acres
and 27 guntas and the same is also at the instance of
defendant nos. 4 and 5 and no basis. But even if it is to
the extent of 5 acres 27 guntas and even same is vested
with the owner of the property as the same is ‘A’ kharab
and there cannot be any issue to that effect and the same
has dealt with in paragraph Nos.30 and 31 of the
judgment referred supra and the same is applicable to the
case on hand.
34. The counsel also relies upon the judgment of the
Apex Court in the case of Vidya Devi v. State of
Himachal Pradesh and Ors. reported in AIR 2020
– 38 –
RSA No. 419 of 2010
Supreme Court 4709, brought to notice of this Court
paragraph Nos. 10.3, 10.4 and 10.6 wherein it is also held
that appellant could not have been forcibly dispossessed
of her property without any legal sanction and without
following due process of law, and depriving her payment
of just compensation, among being a fundamental right on
the date of forcible dispossession.
35. It is noted that the trial Court has framed 16
issues with regard to all the issues between the parties
and answers the same in a perverse manner and appellate
Court has committed an error and fails to take note of the
powers of the first appellate court under Order 41 Rule 31
of Code of Civil Procedure, being first appellate Court as
statutory appellate Court to consider the question of fact
and question of law and the same was not done and in an
ingenious method framed point of consideration only
whether the trial Court judgment is erroneous and it
requires interference and while answering the said point
for consideration of the trial, it is nothing but replica of the
judgment of the trial Court.
– 39 –
RSA No. 419 of 2010
36. The suit was numbered as O.S.No.29/1990 on
the file of Principal Munsiff Court, Chitradurga and later it
was transferred to Civil Judge Junior Division, Challakere
and re-numbered as OS No.147/1994 and later numbered
as O.S.No.201/2001 and the plaintiff has approached the
Court almost 36 years ago and no point in remanding the
matter to the appellate Court to exercise power under
Order 41 Rule 31 of CPC as this Court dealt with all issues
and having reassessed the material on record with regard
to material on record, it is appropriate to answer the
substantial question of law framed by this Court that the
suit is covered in the light of Section 135 of the Karnataka
Land Revenue Act, that there was an entry without any
basis, if any property was taken by the State, without due
process of law and hence, the plaintiff can seek a relief for
declaration and the same is sought as there is no any
acquisition but entries made in the revenue records and
both the Courts dealt with only exclusively as the revenue
entries and the same is not sustainable in law and in facts
of the case. Hence, I answer the substantial question of
law accordingly that revenue entries are made without
any basis and judgment of both the Courts with regard to
– 40 –
RSA No. 419 of 2010
acquisition is not substantiated in the eye of law. Hence, I
answer the substantial question of law accordingly.
36. In view of the discussions made above, I
proceed to pass the following:
ORDER
a. The regular second appeal is allowed.
b. The impugned judgment of the trial Court
passed in O.S.No.201/2001 and the Appellate
Court passed in RA No.104/2007 are set
aside. Consequently, the suit of the plaintiff is
decreed.
c. The plaintiff is declared as the owner and in
possession and enjoyment over the suit land.
The entry made by defendant Nos.1 to 3 in
mutation No.21/1988-1989 passed by the
third defendant in the year 1988-1989 is set
aside and cancelled. Consequently, permanent
injunction is granted in favour of the plaintiff.
d. Draw decree accordingly.
Sd/-
(H.P.SANDESH)
JUDGESSD
