NAGANNACHARI Vs. SARASWATHI

JUDGEMENT

(1.) THE appellant has challenged the judgment and decree of injunction granted by the Trial Court and confirmed in appeal by the First Appellate court.

(2.) THE facts relevant for the purpose of this appeal are as under: THE appellant herein is the defendant whereas the respondents are plaintiffs who instituted a suit bearing OS No.290/1992 seeking relief of permanent injunction. THE suit property is the agricultural land bearing Sy.No.22/3 measuring 3 acres 12 guntas situated at P Basavanahalli Village. THE suit property was the Government land and was granted to Rukminiyamma, the mother of plaintiffs vide the Grant Certificate dated 30.05.1965. She was put in possession of the suit property and after her death, the plaintiffs claims to be in possession of the suit schedule land. THE plaintiffs also contend that the defendant (the appellant herein) having no right, title or interest in the suit property caused obstruction to the peaceful possession and enjoyment of the land by the plaintiffs and in these circumstances, the plaintiffs instituted a suit seeking permanent injunction. THE defendant (appellant herein) appeared before the Trial Court and filed his written statement claiming that he is in possession of the suit property all along for more than 40 years as unauthorized occupant and has put up construction of the house in which he has been residing and cultivating the suit land all along. It is also his contention that he has submitted an application to the revenue authorities to regularize the unauthorized possession and therefore, he contends that as he is in possession of the suit property, the decree of injunction cannot be granted.

(3.) IT is the submission of learned Counsel for appellant that the defendant has been in possession of the suit property for more than 40 years and he has constructed a house and his name appears in the cultivator column of the suit property for the period from 1979 to 1985. Therefore, he claims that prior to the entry of the names of plaintiffs in the records, it was his name which was appearing in the cultivator column and the said entry was deleted illegally by the revenue authorities at the instance of plaintiffs and hence, he submits that the presumption cannot be raised under Section 133 of the Karnataka Land Revenue Act. So also, it is his contention that he has constructed a farm house in the suit property and that he has filed an application before the First Appellate Court both under Order 41 Rule 27 CPC and under Order 26 Rule 9 CPC and that the First Appellate Court committed an error in rejecting these applications, thereby he has also challenged the interim orders of the First Appellate Court. Further more, he contends that when there is a dispute with regard to the title, a suit only for relief of injunction cannot be maintained and it is necessary for the plaintiffs to seek declaration, hence, he claims that the suit instituted by the plaintiffs in the present form is not maintainable in law. Further more, he submits that the presumption that arises under Section 133 of the Karnataka Land Revenue Act is rebuttable and the material placed on record is sufficient to rebut the same. On these grounds, he claims that there is substantial question of law that arises for consideration by this Court.