(Prayer: This Regular Second appeal is filed under Section 100 of CPC against the Judgment and Decree dated 9.1.2004 passed in R.A.No.73 of 1990 on the file of the Civil Judge (Sr.Dn.), Sirsi, Dismissing the appeal filed by the respondents herein and partly allowing the cross objection filed by the appellants herein and confirming the Judgment and decree dated 8.8.1990 passed in O.S.No.99 of 1989 on the file of the Munsiff, Siddapur.)
1. The case of the plaintiffs is that the suit schedule property bearing No.14A totally measuring 44 acres 38 guntas was assigned for the better cultivation and enjoyment of garden land in Sy.No.1/1, 3/1, 3/2, 7/1, 7/2, 171/1, 178/2, 179/1 and 179/2. It is their further case that the plaintiffs/appellants that the plaintiffs and defendants 3 and 4 are entitled to enjoy the beta privileges with respect to Sy.No.14A of Alavalli village. Hence, the instant suit was filed seeking for a declaration and injunction.
2. On service of summons, defendants 3 and 4 entered appearance and denied the suit claim. They contend that the suit B land exclusively belong to them and it is in their possession. Defendant No.1 is the Deputy Commissioner, and defendant No.2 is the Deputy Conservator of Forests. They also resisted the suit by filing a joint written statement. Based on the pleadings, the trial Court framed the following issues and additional issues:
3. The plaintiffs examined two witnesses and marked 25 documents. One witness was examined on behalf of the defendants and they marked 31 documents. The suit was dismissed. Aggrieved by the same, the appellants preferred an appeal. Before the appellate Court, additional documents were marked by the defendants as Exs.D.32 to 34. Cross-objection was also filed by the defendants 3 and 4 seeking to enter the mutation entry 1062 in their favour and also seeking ownership of the suit property. The first appellate court dismissed the appeal, but, however, partly upheld the cross objection by holding that the mutation entry 1062 is valid. However, the ownership of the suit property vest with the State Government. Aggrieved by the same, the defendants have filed Regular Second Appeal No.388 of 2004 and plaintiffs have filed Regular Second Appeal No.477 of 2004. The plaintiffs appeal was admitted by the order dated 06.08.2004 on the following 3 substantial questions of law:
1. Whether the courts below are justified in passing the orders without noticing the impact of Rule 42 Bombay Forest Rules which provides for privileges open to occupants of spice gardens and their tenants in protected forests assigned to them as betas?
2. Whether the Courts below are justified in not noticing the order of the Asst. Commissioner with regard to entry No.1062?
3. Whether the findings of the courts below are perverse?
4. By order dated 28.01.2015 in Regular Second Appeal No.388 of 2004 it was observed that since Regular Second Appeal No.477 of 2004 has been admitted, Regular Second Appeal No.388 of 2004 is also admitted on the same substantial questions of law. However, learned counsel submitted that the substantial questions of law require to be reframed.
5. I have heard learned counsel on the same. Therefore, the substantial questions of law are reframed as follows:
1. Whether the first appellate Court was justified in interpreting Exs.D.32 to D-34 and holding that the ownership of the suit schedule properly vested with the State Government but the possession and enjoyment thereof continued to remain with defendants 3 and 4?
2. Whether the judgment and decree of both the Courts below are perverse in dismissing the suit of the plaintiffs?
6. The plea of the plaintiffs is that the suit schedule property is under their ownership and possession by virtue of the mutation entry effected in their names. In pursuance thereof, evidence and material was led in order t substantiate the same. Ex.P-5 is the mutation entry No.495 wherein it is shown that the suit B is the land for the better enjoyment of group Nos.1, 3 and 7. Therefore, it is pleaded that the suit schedule property is under the enjoyment of the plaintiffs as well as others. The first appellate Court on considering the same, was of the view that what was assigned to defendants 3 and 4 was in terms of Exs.D-32 to 34. In terms thereof Sy.No.14A was assigned to the father of defendants 3 and 4. Therefore, what was assigned to group Nos.1, 3 and 6 which included the plaintiff is the property bearing Sy.No.14/A. On considering the documents, I have no hesitation to hold that the finding recorded by the appellate court with regard to Exs.D.32 to 34 appear to be just and appropriate.
7. On considering the documents, the same would indicate that the land was granted to the father of defendants 3 and 4. It is not a document of transfer of title. It is a document of transfer of usage of the land in question. Learned counsel for defendants 3 and 4 contends that by reading the same it would have to be considered that the grant is a transfer of the ownership also. That even though conditions have been imposed, the same would amount to transfer of ownership.
8. I am unable to accept such a contention in view of the reading of all the 3 exhibits. All the 3 exhibits narrate that the grant has been made to the father of the defendants 3 and 4 on various conditions namely, that in case the property has to be alienated, prior approval from the State Government requires to be taken. That if any of the conditions are violated, the property shall stand reverted to the State Government. That the grant made to the father of defendants 3 and 4 is without collection of any amount whatsoever. Readings the 3 exhibits would clearly indicate that land Sy.No.14A was assigned to the father of defendants for his complete and exclusive enjoyment for the purpose as mentioned in the exhibits. The same cannot be read as transfer of ownership or otherwise as sought to be pleaded by the defendants herein. Therefore the findings recorded by the first appellate Court with regard to Exs.D-32 to 34 are just and appropriate.
9. Second substantial question of law is whether both the courts below misread the evidence and material on record while holding that the suit of the plaintiffs require to be rejected.
10. The entire case of the plaintiffs revolves around Ex.P-5 namely mutation entry No.495. There is no grant certificate produced by the plaintiffs in order to substantiate their ownership or otherwise over the suit schedule property. The suit schedule property in Sy.No. is 14A. The same is granted to the father of defendants 3 and 4 in terms of Exs.D.32 to 34. Therefore, once the land has been granted to the father of defendants 3 and 4, the State Government cannot grant the very same land to the plaintiffs and others. Therefore, it would presuppose that what has been granted to the plaintiffs is not the suit schedule property. The findings recorded by the both the Courts based on Exs.D-32 to 34 would clearly answer the plea of the plaintiffs that mutation entry No.495 is nothing to do with the suit schedule property being granted to the father of the defendants 3 and 4. The second substantial question of law is accordingly answered.
In view of the answers to both the substantial questions of law, both the appeals are rejected. The judgment and decree dated 09.01.2004 passed by the Civil Judge (Senior Division), Sirsi, in Regular Appeal No.73 of 1990 is affirmed. No costs.