Veerabhadraiah and Others vs A.S. Byralingaiah and Others

Ravi V. Malimath, J.—The case of the plaintiff is that he is the owner in possession of three items of the suit schedule properties. The defendant No. 1 had filed OS No. 580/1959 before the Civil Judge Qr. Dvn.), Ramanagaram seeking for partition and separate possession of 1/2 share in the suit schedule properties. On contest, the suit was decreed holding that the plaintiff was entitled for 1/2 share and that the defendant No. 1 should deposit before the Court 1/4th of the mortgage amount before taking possession of his share.

Aggrieved by the said judgment and decree the plaintiff and others filed RA No. 207/1962 before the Civil Judge (Sr. Dvn.), Bengaluru Rural District, Bengaluru. The first appellate Court modified the judgment and decree holding that the defendant No. 1 was entitled for 1/4th share in the suit schedule properties. Aggrieved by the same the defendant No. 1 preferred a regular second appeal before the Hon''ble High Court of Mysore in RSA No. 198/1967. The Hon''ble High Court modified the judgment and decree holding that the defendant No. 1 is entitled for 1/3rd share in the B schedule property and he has to deposit the mortgage amount of Rs. 219.72ps. before he takes his share.

Thereafter, the defendant No. 1 filed a petition in Misc. A. No. 17/1980-81 before the defendant No. 3 - Deputy Commissioner for taking possession of his 1/3rd share. The defendant No. 3 passed an order and held that the defendant No. 1 was not entitled for possession in view of the provisions of Fragmentation and Consolidation of Holdings Act and that the compensation in lieu thereof would be paid to the share of the appellants. The petition was dismissed. No appeal was preferred by the defendant No. 1 against the said order. The defendant No. 1 was not put in possession of the B schedule property by the Authorities. However, the plaintiff and his brother continued to be in possession and enjoyment of the suit schedule properties without interference. The tax is also being paid. That the defendants No. 1 and 2 filed a petition before the defendant No. 4 - Deputy Tahsildar claiming to get khatha in their name. The defendant No. 4 registered the petition as RRT No. 2/1989-90. The defendant No. 4 passed an order to change the khatha and pahani in favour of the defendant No. 1 in respect of the suit schedule properties.

Aggrieved by the same the plaintiff preferred an appeal in RA No. 21/1990-91 before the Assistant Commissioner. The appeal was dismissed. Thereafter, the instant suit was filed seeking for a declaration that the orders passed by the defendants No. 4 to 7 in RRT No. 2/1989-90 and RA (LKP) No. 21/1990-91 dated 16.05.1990 and 06.09.1991 respectively are illegal and void and not binding on the plaintiff or his brothers, as well as for consequential permanent injunction.

On service of suit summons, defendants entered appearance and denied the plaint averments. They denied that the plaintiff is the owner in possession of the suit schedule properties. Filing of the suit in OS No. 580/1959, the appeal and second appeal were admitted. It was contended that the revenue proceedings were in terms of the decree passed in favour of the defendant No. 1 and that the RRT proceedings are in accordance with law. Hence sought for dismissal of the suit.

Based on these pleadings trial Court framed following issues:

"(1) Whether the plaintiff proves that the orders passed by the defendant No. 4 to 7 in RRT No. 2/1989-90 and RA (LKP) No. 21/1990-91 dated 16.05.1990 and 06.09.1991 respectively are illegal, null and void?

(2) Whether the plaintiff proves that he is in possession of the suit schedule property?

(3) Whether the plaintiff proves the alleged interference by the defendants?

(4) Whether the suit is not maintainable?

(5) Whether the suit is not properly valued and the court fee paid is insufficient?

(6) Whether the plaintiff is entitled for the relief claimed in the plaint?

(7) What order or decree?"

During the pendency of the suit Issue No. 4 was treated as a preliminary issue and answered in the negative. As per the order dated 05.07.2003 parties were directed to adduce evidence. The Plaintiff was examined as PW1 and marked 6 documents. Defendant No. 1 was examined as DW1 and 10 documents are marked. Issue No. 1 was held in the affirmative and Issue No. 6 as partly in affirmative. Rest of the issues were held in the negative. The suit was partly decreed. It was declared that the orders passed by the defendants No. 4 to 7 in RRT proceedings and appeal were illegal, null and void and not binding on the plaintiff. Prayer for permanent injunction was dismissed. Aggrieved by the same defendant No. 1 preferred RA No. 107/2004 and Cross Objections was also filed by the plaintiff. The first Appellate Court by its order dated 01.09.2008 dismissed the appeal as well as the Cross Objections. Aggrieved by the same the defendants have filed this second appeal.

Heard learned counsels.

The following substantial question of law arises for consideration in this appeal

"Whether the judgment and decree of both the Courts below are perverse in holding that the RRT proceedings are not in accordance with the judgment and decree passed by the Civil Court and therefore, the suit of the plaintiff was rightly decreed?"

The admitted facts are that the defendant No. 1, appellant herein had filed OS No. 580/1959 for partition and possession of his 1/2 share. The suit was decreed in part and the defendant No. 1 was directed to deposit 1/4th of the mortgage amount before taking possession. The first Appellate Court modified the same by holding that the defendant No. 1 was entitled to 1/4th share. The Hon''ble High Court of Mysore in Regular Second Appeal held that the defendant No. 1 is entitled for 1/3rd share in the B Schedule property and that the defendant has to deposit the mortgage amount of Rs. 219.72ps. Therefore, the RRT proceedings had necessarily had to be based on the judgment and decree passed by the High Court. Therefore, the Revenue Authorities, namely, defendant No. 4 to 7 were not entitled in law to pass an order, which runs contrary to the judgment and decree of the Civil Court. The judgment and decree of the trial Court as well as first Appellate Court are merged in the judgment and decree of the Second Appellate Court in RSA 198/1967. Therefore, it is that judgment and decree alone that is executable and it is that judgment alone that can be transcribed into the names of the parties being entered in the revenue records.

The apparent dispute between the parties with regard to their names being entered had stood concluded by the judgment and decree passed in RSA 198/1967. The Revenue Authorities to take a different view is therefore, not acceptable. The question of title or possession is necessarily the subject matter of adjudication before the necessary Civil Court. Revenue Authorities have no jurisdiction to determine the same. When admittedly the judgment and decree is held to the effect that the appellant - defendant No. 1 is entitled for 1/3rd share in B schedule property, the revenue records would necessarily have to conform to such a judgment and decree. Apparently that has not been done. In terms of the proceedings, 1/2 a share has been entered in the revenue records based on the judgment and decree of the trial Court. It is apparently an error. The judgment and decree of the trial Court is not executable, since the same has since been merged in the order of the second appellate Court. Therefore, the trial Court was justified in holding that the RRT proceedings cannot be binding on the plaintiff. The first Appellate Court has confirmed the said finding. Hence, Tarn of the view that both the courts below were justified in holding that the RRT proceedings are not binding on the plaintiff, in view of the fact that RRT proceedings run contrary to the judgment and decree of the High Court. Hence, the substantial question of law is answered by holding that there is no perversity in the judgment and decree of both the Courts below in decreeing the suit of the plaintiff by holding that RRT proceedings are opposed to the judgment and decree of the first Appellate Court.

At this stage the learned counsel for appellant contends that the proceedings would necessarily be relatable only to the 1/3rd share in B schedule property. It is needless to say that the judgment and decree of RSA No. 198/1967 that is executable and it is binding on the revenue authorities. The judgment and decree has been modified to 1/3rd share in B schedule property provided deposit has been made by the defendant No. 1 of the amount specified therein. Therefore, the judgment and decree of both the Courts below should necessarily be in conformity with the judgment and decree passed in RSA 198/1967. Consequently, the appeal being devoid of merit is dismissed.