CHANDRASEN BAPUSAHEB JADHAV Vs. GANGAPPA YALLAPPA HOLIE

JUDGEMENT

(1.) THIS appeal is by the plaintiffs being aggrieved by the judgment and decree passed by the learned Principal Civil Judge (Senior Division) Belgaum, in R. A. No. 40/1991 in allowing the appeal and setting the judgment and decree of the Trial Court in O. S. No. 877 1986.

(2.) PLAINTIFFS filed a suit before the I Additional Civil Judge (Junior Division) Belgaum in O. S. No. 87/1986 for possession of the suit property. According to the plaintiffs, suit property in sy. No. 90/1b situated at Balekundri Khurd village measures 4 acres 2 guntas and is assessed at rs. 9. 72ps. The land is a watan land granted for officiating as Patil of the Village Officer under the Karnataka Village Offices Abolition Act, 1961 and Bombay Hereditary Offices Act, 1894. Plaintiffs state that Sy. No. 90/1 was divided into 90/1a and 90/1b. Originally the land was held by Balavantrao Parashuram Jadhav, Bapusaheb Parashuram Jadhav and Yeshwantrao parashuram Jadhav. Since the land was resumed by the Government of Mysore, it was regranated to Balavantro Jadhav in the year 1966 by the Assistant Commissioner Belgaum, and m. E. No. 2074 was rectified in pursuance of the regrant order. Subsequent to this regrant order, partition took place and the suit land was allotted to the share of Bapusaheb Parashuram Jadhav who died in the year 1976 and thus plaintiffs became the owners of the suit land prior to the introduction of the Karnataka Village Offices Abolition Act, 1961. The suit land was alienated under a deed of permanent lease in favour of Yallappa Kariyappa Holi and Vithappa Kariappa holi on 22-10-1956 by Balavantrao Parashuram Jadhav, Bapusaheb Parashuram Jadhav and yeshwantrao Parashuram Jadhav and this alienation was effected prior to Karnataka Village offices Abolition Act, 1961 which came into force on 1-2-1963. Plaintiffs state that the alienation is illegal and void and does not create any interest in the land in favour of the defendants as per the Bombay Hereditary Offices Act as no permission was obtained from the competent authority. Hence, alienation is illegal and unauthorised. It is contended by the plaintiffs that they became owners of the suit property on grant in favour of their father Bapu saheb. Suit was resisted by the defendants contending that there was regrant order of the suit property in favour of defendants by the Assistant Commissioner, Belgaum. Plaintiffs are not in any way concerned with the suit property and suit for possession is barred by time. Since suit is only for possession and not declaration, suit is not tenable in law and also it is contended that plaintiffs claimed title to the suit property through the Government and as such Government is a necessary party and also suit is bad for non-joinder of necessary parties. Defendants denied the claim of the plaintiffs, further contended that they were agriculturists and suit land was alienated by the predecessors of the plaintiffs on 22-10-195 6 by obtaining permission from the competent authority and as per the said deed, the predecessors came into possession as permanent lessees. Thereafter, property was regranted to one Yellappa Holi, Vithappa Holi by the Assistant commissioner Belgaum, on 10-2-1975 and M. E. No. 2074 was certified. It is contended that yellappa Holi and Vithappa Holi are deemed tenants as per the Karnataka Land Reforms Act and all the lands were resumed by the Government. Plaintiffs who were the predecessors of the land had no title and interest over the suit property and they cannot claim ownership in respect of the suit land and also there is regrant order in favour of the defendants on 10-2-1975 as owners of the suit property. The Trial Court based on the pleadings raised as many as ten issues in addition to one additional issue.

(3.) AFTER Trial and hearing the parties, the Trial Court held that suit property is a watan land and that it was granted in favour of one Balwant Rao in the year 1966. Plaintiffs have proved that in the partition, property has fallen to the share of father of the plaintiffs. It is also held that earlier lease dated 22-10-1956 in favour of one Yellappa Holi was illegal and as such possession of the defendants are illegal. Accordingly it negatived the contention of the defendants that they are in possession as owners and decreed the suit of the plaintiffs for possession. Although it held that government is a proper party, it also held that it is a necessary party. Being aggrieved by the same, appeal was preferred before the Learned Civil Judge (Senior Division) Belgaum, in R. A. No. 40/91. The appellate Court reversed the finding of the Trial Court and dismissed the suit of the plaintiffs. Being aggrieved by the same, this second appeal is by the plaintiffs raising several substantial questions of law.