Huluvadi G. Ramesh, J.
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 re-granted 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.
4. At the time of admission, the following substantial questions of law were raised:
Whether the finding of the appellate Court that plaintiffs have failed to prove the title by way of regrant and as such not entitled to possession is perversely contrary to law and evidence on record?
This substantial question of law was raised on 6-2-2004 by my brother K. Sridhar Rao J. I feel that this is not the substantial question of law that has to be gone into in this appeal. The substantial question of law according to me would be:
1. Whether suit filed by the plaintiffs for possession is maintainable in law?
2. Whether the plaintiffs could seek for possession unless the subsequent regrant order made in favour of the defendants by the competent authority is set aside?
5. Heard the Learned Counsel for the respective parties.
6. It is the submission of the Learned Counsel for the appellants that as per Section 9 of Code of Civil Procedure unless barred a suit is maintainable and unless it is barred specifically by any statute suit for possession is maintainable. He also contended that regrant order is in favour of the plaintiffs and in the partition the property fell to the share of the father of the plaintiffs. As such, land being a watan land by virtue of regrant order, earlier permanent lease in favour of one Yellappa Holi is void as per the Bombay Watan Act as it is without permission. It is also contended that on such regrant plaintiffs are entitled for possession and also any such regrant in favour of the defendants is not legal and valid. Learned Counsel accordingly contended that plaintiffs are entitled for possession. He further submitted that they tried to secure the original regrant order. However, when they approached the authorities an endorsement was issued that no such order was available. Accordingly, he contended that respondents have not produced any regrant order and regrant order if any is illegal. As per Village Offices Abolition Act, plaintiffs are the authorised holders as such they are entitled for possession and the question of defendants if any being unauthorised they cannot continue in possession. Accordingly, he argued that the Trial Court has rightly ordered for possession.
7. Per contra, Learned Counsel for the respondents vehemently contended that admittedly the suit property is a watan land. Although there is earlier regrant in favour of the plaintiffs predecessor, since it is found that subsequent regrant is in favour of the defendants, unless and until the said order is reconsidered before the appellate forum and set aside, the plaintiffs are not entitled for possession. After enactment of the Village Offices Abolition Act, land is resumed by the Government and it is for the Deputy Commissioner to deal with it in accordance with law. Plaintiffs cannot maintain a suit for possession and they have to approach the competent authority if any. He further submitted that by virtue of regrant order plaintiffs are not entitled for possession much less, the suit is not maintainable before the Civil Court and also contended that in the absence of seeking relief of declaration mere possession is not permissible.
8. In support of the arguments, Learned Counsel for the respondents relied upon ruling reported in Annaji Vasudev Dangarkarand Ors. v. Venkatesh Ramachandra Deshpande and Anr. AIR 1966(1) MLJ 77. He contended that Civil Court has no jurisdiction to decide as to who is entitled for regrant of lands resumed to the Government under the Watan Act.
9. After hearing the parties, now I proceed to consider the substantial questions of law raised by me. In the instant case, suit property is a watan land. As per the contention of the plaintiffs, the suit property was resumed by the Government on coming into force of Karnataka Village Offices Abolition Act of 1961. Thereafter there was an order of regrant in favour of family of the plaintiffs and also earlier permanent lease in favour of Yellappa Holi became illegal as it was without permission and by regrant, plaintiffs are entitled for possession. Per contra, it is the specific case of the defendants that by virtue of the order of the Assistant Commissioner Belgaum, in the year 1975, they are in continuous possession and by virtue of lease deed and regrant order, plaintiffs are not entitled for possession. It is seen that in the decision referred to by the Learned Counsel for the respondents as aforesaid ratio laid down is that Civil Court has no jurisdiction to decide who is entitled to get regrant of the lease resumed by the Government under the Watan Act.
10. Let me now consider the provisions of Karnataka Village Offices Abolition Act, 1961. According to the defendants, they are the permanent lessees of the suit property after obtaining permission under the Bombay Hereditary Offices Act and also according to them they are authorised holders, as such they are also entitled for regrant in their favour. Although there was earlier grant in favour of the plaintiffs' predecessor, it appears there was subsequent re-grant in favour of the defendants. Of course, it is also the contention of the defendants that earlier alienation made in their favour was with the permission of the competent authority, as such they are the authorised holders, Of course, some entries were made in the mutation records are based on the order. However, original order is not produced by either of the parties. Plaintiffs are mainly litigating on the entry made in the earlier records. Regrant made subsequently in favour of the defendants namely in favour of Yellappa Holi, should be questioned before the competent authority as is provided under the Act. If any question arises while dealing with the matter of regrant and also in passing order as to who is an authorised holder or unauthorised holder, it is the Deputy Commissioner. If such finding given by the Deputy Commissioner is not favourable, it is for the parties to approach the District Judge in appeal against the order of the Deputy Commissioner and the order of the District Judge would be final. In that view of the matter having regard to the nature of rival contentions between the parties, it is for the plaintiffs to approach at the first instance the Deputy Commissioner or in the alternative being aggrieved by the order of the Deputy Commissioner before the District Judge as matter of appeal and not the civil Court in the course of first instance. As such, suit fled by the plaintiffs itself is not maintainable.
11. Further more Deputy Commissioner has to take possession of land and then hand over the possession. As per Section 6 of the Act, there would be regrant of any land resumed under Section 4(3) to the authorised holder on payment by him to the State Government of the occupancy price equal to six times the full assessment of the land and subject to the conditions and consequences mentioned in Section 5 of the Act. The prime contention in the instant case according to the plaintiffs is there was earlier lease in favour of Yellappa Holi and it was illegal as it was not accorded by the competent authority. However according to the defendants, there is permanent lease in favour of Yellappa Holi after permission from the competent authority as such alienation in their favour is valid and they are authorised holders. There are two grants, one in favour of the plaintiffs predecessors and thereafter subsequently in the name of defendants. Under such circumstances, plaintiffs if aggrieved by order of regrant in favour of the defendants may approach the Deputy Commissioner or the appellate forum. As per Section 3 it is District Judge in appeal. The order of the Trial Court granting relief of possession is contrary to the above legal position. Moreover plaintiffs will not be entitled for possession unless they approach the competent authority that is appellate forum as is provided under the Act. Section 7 also makes it clear that any land resumed under Section 4(3) is in the possession of any unauthorised holder, such unauthorised holder shall be summarily evicted therefrom and the land shall be taken possession of by the Deputy Commissioner in accordance with law after affording opportunity to the parties and also order of the Deputy Commissioner would be final and cannot be questioned in a Court of law and no injunction shall be granted by any Court in respect of the proceedings before the Deputy Commissioner in view of the express bar. Necessarily even suit for possession is not maintainable. Under such circumstances at the threshold the Trial Court ought to have dismissed the suit having regard to the facts and circumstances of the case. Moreover the plaintiffs would not be entitled to seek possession of the suit property by maintaining the suit as it is done in the instant case. They ought to have approached the appellate forum as per Section 3 of the Karnataka Village Offices Abolition Act being aggrieved by the order of regrant in favour of the defendants and also seek for possession if any. For the foregoing reasons while answering the substantial questions of law in favour of the respondents, appeal is dismissed. Parties to bear their own costs.