1. This second appeal arises out of a suit for possession of a site situated in a gaonthana and for damages of Rs. 200/- for the removal of mud from that site. The defendants contested the suit. The trial court dismissed it. One of the grounds on which the suit came to be dismissed by the trial court was that it was, barred under Section 61 of the Karnataka Land Revenue Act, 1964 (hereinafter referred to as the Act). The plaintiff filed an appeal against the decree of the trial court before the Civil Judge, Hubli in R. A. No. 13 of 1971. The Civil Judge also was of the opinion that the suit was barred under Section 61 of the Act and dismissed the appeal without recording his findings on the other issues which arose for consideration in the appeal. Hence this second appeal by the plaintiff.
2. It is not disputed that the suit was for possession of a site and for damages. The Government is not a party to the suit. It is between private parties. The suit is instituted for establishing a private right in respect of the site in question. Section 61 of the Act would not bar a suit coming under any of the clauses (a), (b) and (c) in Section 62 of the Act. Section 62 states that nothing in S. 61 shall be held to prevent the Civil Courts from entertaining suits, between private parties for the purpose of establishing any private right, although it may be affected by any entry in any land record; and suits between private parties for possession of any land being a whole survey number or sub-division of a survey number or a part thereof [vide clauses (b) and (c) of S. 62 of the Act]. The present case falls under clause (b) of Section 62 of the Act. The court below was therefore in error in holding that the suit was barred under Section 61 of the Act.
3. The decree passed by the lower appellate court is therefore set aside. Issue No. 6 which reads, 'whether this court has jurisdiction to try the suit in view of the provisions of the Mysore Land Revenue Act?' is answered in the affirmative and in favour of the plaintiff. The suit is held to be maintainable before the Civil Court. The case is remanded to the lower appellate court to dispose of the appeal after recording its findings on the other issues.
4. The institution fee paid on the memorandum of appeal shall be refunded to the appellant.
5. Appeal allowed.