SANNABORAIAH ALIAS BORAIAH Vs. KONANA MALLAIAH

JUDGEMENT

(1.) THIS second appeal is by the plaintiff who succeeded before the trial Court, but had failed before the Lower Appellate Court. The parties would be referred to in the same rank assigned to them before the trial Court for the purpose of convenience and clarity.

(2.) THE brief facts are that the plaintiff was before the trial Court contending that the land bearing Sy. No. 37/6 measuring 2 acres 10 guntas of Mallurahalli village in Challakere Taluk was granted to Boraiah, S/o. Konana Hollaiah by the Government under Darkhast in or around the year 1955. The said Boraiah was in possession and has gifted the said land to the plaintiff under a registered gift deed dated 9. 6. 1961. The plaintiff who claims to be the donee under the said gift deed is said to have accepted the gift and was also put in possession of the property. The plaintiff therefore claims to be the absolute owner of the suit schedule property and contends that his name has been entered in the revenue records from the year 1961-62 and has continued so till the year 1994-95. The plaintiff also contends that in order to develop the land and to dig a well, he had raised loan from the Primary Land Development Bank. Towards the said loan, the plaintiff claims to have mortgaged the suit land and also refers to the sinking of the well having failed and in that regard having taken benefit of the Government scheme and a part of the amount still being due to the Bank. The plaintiff contends that the defendants who had no manner of right to the said property made an application to the Tahsildar, challakere Taluk for resumption of the suit land under Section 25 of the karnataka Land Grant Rules. The said application is said to have been made seeking cancellation of the transfer made contrary to the Schedule castes and Tribes (Prohibition and Transfer of certain Lands) Act and to restore the land to the defendant. The matter is said to have been referred with an endorsement stating that the Assistant Commissioner had already decided the matter. The grievance of the plaintiff is that despite the said position, the Deputy Tahsildar had passed an order to change the khatha of the suit property which is unsustainable. The Assistant Commissioner also dismissed the appeal of the plaintiff. Since such orders were passed stating that the gift deed was not valid, the plaintiff contends that the revenue authorities have no jurisdiction to decide upon that aspect The further grievance of the plaintiff is that based on such illegal orders, the defendants started interfering with the possession and enjoyment of the property by the plaintiff. The plaintiff has also stated that the defendants are backed by influential persons and as such the plaintiff has sought for the relief of declaration and permanent injunction in respect of the suit schedule property.

(3.) THE defendants on being served with the suit summons have appeared and filed their written statement. The defendants are the sons of late Boraiah and it is contended by the defendant that they along with the said Boraiah constituted an undivided Hindu Joint family and at that point in time the suit schedule property was granted to the defendants' family and the saguvali chit was issued on 8. 10. 1955. The upset price for grant of the said land is contended to have been paid out of the joint family income earned from the other ancestral land more particularly in Sy. No. 36. Hence it is contended that the grant is for the benefit of the joint family and the defendants along with their father were in possession of the suit schedule property. The defendants have also referred to the Karnataka land Grant Rules contending that the granted land cannot be alienated during the period of prohibition. Hence it is contended that the alleged gift deed dated 9. 6. 1961 stated to have been obtained by the plaintiff is in violation of the condition of the grant and is void and no right would be conferred. Since the upset price was paid from the joint income, the said boraiah had no exclusive right to make the alleged gift and the same was not acted upon. The Khatha of the property for the year 1965 to 1975 and 1986-1993 stood in the name of the defendants' father Boraiah and thereafter it has been mutated to the name of the defendants on inheritance. It is contended that the alleged gift deed is a farce device and with the result of legal flaws concocted by the plaintiff at the behest of his henchmen is unenforceable. The further contentions in the plaint with regard to the raising of the loan and the improving of the land has been denied. The revenue proceedings relating to the land wherein the Assistant commissioner has dismissed the appeal, which has been averred in the plaint has also been adverted to in the written statement. The defendants contend since they are in possession and enjoyment of the suit schedule property, the allegation of interference is false and as such the defendants have sought for dismissal of the suit.