(Prayer: This regular second appeal is filed under Section 100 of CPC, is praying to set aside the judgement and decree dated 22.01.2008 passed in r.a.no.45/07 on the file of the civil judge (sr.dn) at Ramdurg, confirming the judgment and decree dated 11.4.2001 passed in o.s.no.119/87 on the file of the civil judge (jr.dn), ramdurg, suit be decreed as prayed for and this appeal be allowed with costs throughout.)

Oral Judgment:

1.     Heard arguments of learned counsel for both sides.

2. This is the appeal filed under Section 100 of the Code of Civil Procedure (for short 'CPC') challenging the Judgment and decree dated 22.01.2008 passed in RA No.45/2007 (Old RA No.5/2001) on the file of Civil Judge (Senior Division), Ramdurga (for short 'First Appellate Court') and to set aside the Judgment and Decree dated 11.04.2001 passed in OS No.19/1987 on the file of Civil Judge (Junior Division) Ramdurga (for short 'trial Court') to decree the suit of the plaintiff.

3. Plaintiffs have filed the suit before trial Court praying for the relief of declaration that the plaintiffs have absolute right over suit schedule property and also for the relief of permanent injunction restraining defendants from interfering with their peaceful possession over suit schedule property.

4. The case of plaintiffs before trial Court in nutshell is that suit schedule property bearing Re.Sy.No.141 measuring 6 acres 1 gunta situated at Kullur Village, Ramadurga Taluk, is the property of plaintiffs and their forefathers who were enjoying this property as they and their family were working as Halabaki, an inferior village office. Plaintiffs further contended that their grandfather Sri Tammanna Balappa Balannavar resident of Kullur was in possession of this property as Inam land. It was continued in their families; the father of plaintiff Nos.1 to 4 Sri Venkappa was in possession of it, cultivating it and was getting its proceeds. Defendants having no right, title or interest in or over suit schedule property, but because they are very nfluential family, have colluded with higher officers, illegally got the revenue entries into their names and based on those revenue entries, they are trying to forcibly evict plaintiffs from suit schedule property and hence the suit for appropriate relief.

5. After service of notice, defendants have filed their written statement wherein they denied all other averments made in the plaint. They contended that initially, suit schedule property was in possession of Srimantha Ramachandra Rao Dattaji Rao Shinde and he was the owner of this property. Afterwards, during 1955 there was partition in between said Srimantha Ramachandra Rao Dattaji Rao Shinde and his brothers. He further contended that suit schedule property was Dumaldar Gao Sanadi Inam land and it continued with their possession and accordingly mutation is certified in the year 1954 by revenue officials in the name of elder brother of defendant No.1 and after partition, it is mutated into the name of defendant No.1 as per diary No.281; as per diary No.282, after commencement of Mumbai Inams Abolition Act, as the suit scheduled property was ryotwari land, it continued in the name of defendants. Defendants have planted approximately 200 Eucalyptus plants in 4 acres of suit schedule property. They have obtained loan from Syndicate Bank, Ramdurga Branch for planting the Eucalyptus plantation. As per the plaint pleadings, suit schedule property is Inam land and hence this Court has no jurisdiction to try the suit. The Court fee paid is insufficient and valuation made for the purpose of Court fee and jurisdiction is incorrect. Hence, prayed for dismissal of suit with costs.

6. Based on the above pleadings, the trial Court has framed the following issues and additional issues:-.

                  Issues:

1. Whether the plaintiffs prove that the suit land was Halabaki Inam land and the same was given to their fore-fathers for rendering services as Halabas as contended in para 3 of the plaint?

                  2. Whether the plaintiffs further prove that they are in actual possession and making wahivat of the suit land since their fore-fathers till today?

                  3. Whether the plaintiffs prove that defendants have no right or interest over the suit land even then they are interfering the lawful possession of plaintiff?

                  4. Whether the defendants proves that the suit land has fallen to their share in the year 1955 and ever since they are enjoying the suit land as owner and possession as contended in para 2 of written statement?

                  5. Whether the defendants further prove that they have planted Nilagiri tree in the suit land as contended in para 4 of their written statement?

                  6. Whether the plaintiffs are entitled for the relief of declaration and permanent injunction as prayed in the plaint?

                  7. What order or decree?

                  Additional Issue

                  1. Whether this Court is having jurisdiction to entertain the suit?

7. After recording evidence of both sides and hearing arguments of both sides, the trial Court came to the conclusion that the regrant in favour of plaintiff is not established by producing any cogent evidence and plaintiffs have not established their ownership and possession over suit schedule property and thereby dismissed the suit.

8. Aggrieved by the said judgment and decree, plaintiffs-appellants have preferred the appeal before First Appellate Court.

9. Plaintiffs-appellants have produced the grant order in the first appeal and it was marked with consent as Ex.P13. Even then, the First Appellate Court has dismissed the suit opining that the regrant order was passed during pendency of the suit and that will not confer possession of plaintiffs over suit schedule property before regrant and plaintiffs failed to establish their ownership over suit schedule property as on the date of suit and further made an observation that defendants have produced certain documents to show that suit schedule property was in their possession at the time of filing of the suit and hence, dismissed the appeal by confirming the judgment and decree of First Appellate Court.

10. Being aggrieved by the said judgment and decree, plaintiffs- appellants are before this Court.

11. At the time of admitting the appeal, this Court has framed the following substantial questions of law:

                  i) Whether the courts below were right and justified in holding that the suit was not maintainable as the suit property was an inam land governed by the provisions of the Karnataka Village Office Abolition Act, despite the fact that the land in question was regranted in favour of the plaintiffs though after the institution of the suit?

                  ii) What is the effect of pendency of the appeal before the District Judge against the order passed by the Assistant Commissioner ordering regrant of land in favour of the plaintiffs under the provisions of Karnataka Village Office Abolition Act?

                  iii) Whether the courts below were right and justified in ignoring the regrant order and the mutation entries while coming to the conclusion that the plaintiffs had failed to prove their possession?

12. Heard arguments of both sides.

13. Learned counsel for the appellants, Ms. Surabhi Kulkarni, would submit that even though there are concurrent findings of the Trial Court and the First Appellate Court, the plaintiff is not entitled for the relief of declaration and permanent injunction; the first appellate court has not considered the material documents, especially Exs.P.1 and P.13.

14. Ex.P.1 shows the name of plaintiff's grandfather, Thammanna Balappa Balannavar, in Column No.4 of the Inam Register in respect of Survey Nos. 18 and 141. The suit schedule property bearing Survey No. 141, was admittedly a Dumaldar Gao Sanadi Inam land, as is evident from Ex.P.1. defendants also not dispute the nature of suit schedule property.

15. After commencement of the Bombay Paragana and Kulkarni Watans (Abolition) Act, 1950, the lands in question were vested with the Government, which is established by Ex.D.6 (Mutation Entry No.282). After such vesting of land with Government, the plaintiffs have given an application for regrant of the land to the Land Tribunal, and accordingly, as per Ex.P.13, the suit schedule property was regranted to them by order dated 30.12.1999, i.e., during pendency of the suit. However, the Trial Court and the First Appellate Court have not considered the prayer of the plaintiff only on the limited ground that the regrant order was passed only during the pendency of the suit with misnomer that as on the date of suit, the plaintiffs were not in possession.

16. It is further submitted that the plaintiffs have prayed for declaration of their rights and permanent injunction. Even though there is no specific word used to declare that plaintiffs are absolute owners of the suit schedule property, the mofussil pleadings must be understood in a proper legal manner. Thus, the plaintiffs have prayed for declaration of their title to the suit schedule property and not any other right.

17. Secondly, the Trial Court dismissed the suit on the ground that it had no jurisdiction to entertain the suit, because the tenancy dispute is to be decided by the Land Tribunal and not by the Civil Court. However, the dispute between the parties in the present case is civil in nature i.e., prayer to declare rights of plaintiff and to grant permanent injunction to plaintiff. Hence, civil Court has jurisdiction to entertain the suit.

18. Learned counsel for the appellant would further submit that, as per Section 2(g) of the Bombay Paragana and Kulkarni Watans (Abolition) Act, 1950, "Watan Act" means the Bombay Hereditary Offices Act, 1874 (Bombay Act III of 1874). As per Schedule I of this Act, whole of the Bombay Hereditary Offices Act, 1874 and Bombay Hereditary Offices (amendment) Act, 1886, were ceased to apply. Hence, as per Section 4 of this Bombay Paragana and Kulkarni Watans (Abolition) Act, 1950, the holder of Watan land to be occupant and regrant shall be made to the holder of the land. Accordingly, as per Ex.P.13, regrant was made to plaintiffs' father-Venkappa. When the earlier Bombay Hereditary Offices Act, 1874 itself is ceased to apply in toto, the submission of learned counsel for the respondent that the suit schedule property was Ryotwari land and defendants need not pray for regrant cannot be accepted.

19. The judgment of Limbaji Vs. Rama reported in P.J. 1898 127, is not applicable to the present case, because, long after passing the said judgment, when the entire Act of 1874 was ceased to apply, it cannot be said that the Ryotwari land need not be regranted.

20. Learned counsel for the appellant would further submit that, as far as possession is concerned, both Courts have held that the defendant is in possession of the suit schedule property.

21. The plaintiffs are in possession of suit schedule property, and only after making spot inspection and coming to know that plaintiffs are in possession of the suit schedule property, regrant was made to the plaintiffs. Furthermore, the regrant dates back to the commencement of the Act, i.e., to the year 1950. Hence, possession of plaintiff as on the date of filing of the suit is proved. Further, the plaintiff has established her possession over the suit schedule property by examining himself and also examining the witnesses. The trial court and the first appellate court have not examined these points of law properly; and hence prayed for allowing the appeal.

22. Learned counsel for the respondents, Sri. R. K. Kulkarni, would submit that, earlier Survey No.141 was given as Inam land to the grandfather of the plaintiffs by the defendants, as per Ex.P.1. The defendants are Dumaldars of the village. Thus, they had power to give the property and the power to take it back. The defendants, being the Dumaldars, had every right to appoint or remove the Sanadi and to attach the Sanadi Watan. The suit schedule property might have been given earlier and it was taken back from the predecessors of the plaintiffs.

23. Ex.D.5 is the Mutation Entry Nos. 1 and 281. This document reveals that the suit schedule property was in possession of the defendants and it was fully assessed land; and thus, it was not vested with the Government under the Bombay Merged Territories Miscellaneous Alienations Abolition Act, 1955, with effect from 08.05.1955, the land became fully assessable and taxable (Ryotwari lands) and the RTCs also disclose payment of full assessment.

24. Furthermore, in the year 1952 itself the dispute arose between father of plaintiffs-Venkappa and defendants. The father of plaintiffs had given an application before the Assistant Commissioner for resumption of the land, but the said application was rejected, as evidenced by Ex.D.20 dated 29.07.1952. Thus, in the year 1952 itself, the plaintiffs' predecessors were not in possession of the suit schedule property and no material is produced by them to show that they came into possession of the suit schedule property thereafter.

25. Even in the year 1960, the defendants have given the suit schedule property to tenant by name Yamunappa; however, since there was no registered agreement or deed, the application for change of name of the tenant in the RTC was rejected, as evidenced by Ex.D.22.

26. Thus, at no point of time, the plaintiffs were in possession of the suit schedule property. There are concurrent findings of the Trial Court and the First Appellate Court on this aspect. The RTCs, since from inception, stand in the name of the defendants and not in the name of the plaintiffs at any point of time.

27. The alleged regrant was not in existence as on the date of the suit. Furthermore, as per Mutation Entry No.282, under the Bombay Merged Territories Miscellaneous Alienations Abolition Act, 1955, the lands were not vested with the Government, but continued in the name of defendants as Ryotwari land. Under such circumstances, the alleged grant of land in favour of the plaintiffs under Ex.P.13 under the Bombay Paragana and Kulkarni Watan (Abolition) Act, 1950 is of no consequence.

28. Even though the said grant was challenged before the Deputy Commissioner, the same was dismissed for want of jurisdiction. No further appeal was preferred before the competent court. Therefore, even if the grant is not challenged, it does not confer any enforceable right upon the plaintiffs.

29. Learned counsel for respondent would further submit that the suit filed by the plaintiff without possession is not at all maintainable in law. Both the trial court and the first appellate court have held that the plaintiff is not in possession of the suit schedule property. This finding is a finding of fact and cannot be interfered with in Second appeal.

30. Learned counsel for the respondent would submit that Ex.D.6 clarifies that there need not be any regrant to defendants. The lands in question were not vested with the Government even as per Bombay Merged Territories Miscellaneous Alienations Abolition Act, 1955.

31. Learned counsel for the respondent relied on the judgment of the Hon'ble Apex Court reported in (2006) 3 KCCR 186 (Head Note -). Hence, prayed for dismissal of the appeal.

32. Having heard arguments of both sides and verifying the appeal papers along with trial court record, the findings of this court on substantial questions of law are as follows:

REASONS

Regarding substantial question of law No.2:-

33. Learned counsel for respondents would submit that even though the regrant as per Ex.P.13 was challenged by defendants before the Deputy Commissioner, the same was dismissed for want of jurisdiction. No further appeal was preferred before the competent District court.

34. As per the submission of the learned counsel for respondent, the regrant in favour of plaintiff/appellant was not at all challenged before any District Court. It was a wrong submission that an appeal is pending before the District Court, but no such appeal is filed at all.

35. Learned counsel for the respondent fairly submits that no appeal is preferred against the re-grant in favour of the plaintiff before the District Judge. The appeal filed before the Deputy Commissioner was dismissed for want of jurisdiction. Under these circumstances, substantial question of law No.2 does not exist, because no such appeal is preferred. Accordingly, substantial question of law No.2 is answered.

36. Regarding substantial questions of law No.1 & 3:-

                  The contention of plaintiffs is that their grandfather Thammanna Balappa Balannavar was granted with suit Sy.No.141 along with Sy.No.18, as he was performing the services of Halabaki, a type of inferior village office.

37. Plaintiffs have produced Ex.P.1 maintained in the office of the Village Accountant in Form No.1. It reveals that the suit schedule property was Dumaldar Gaon Sanadi Inam and plaintiffs' forefather was Tammanna Balappa Ballannavar was the Inamdar and he got his Inam through Dumaldar Saheb. Not only this suit survey No.141, but also Survey No.18 measuring 19 acre 12 guntas, were given to the plaintiffs' forefather as Dumaldar Sanadi Inam through Dumaldar Saheb.

38. The trial Court has dismissed the suit holding that plaintiffs have not produced the regrant order.

39. During pendency of the First appeal, plaintiffs have produced the re-grant order as per Ex.P.13 and it was marked with consent. According to the Ex.P.13 as per Bombay Paragana and Kulkarni Watan (Abolition) Act, 1950, the suit schedule property is granted to Balappa Maruthi Venkappa, Sakin Kulluru i.e., in favour of plaintiff No.1.

40. Defendants are not disputing that Thammanna Balappa Balannavar was serving inferior village office and also not disputes that Sy.No.141 & Sy.No.18 were granted to him for serving said village office under Ex.P.1. Their contention is that as per Ex.P.1, Sanadi rights were given to the plaintiffs' ancestors by the Dumaldar and later Sy.No.141 was withdrawn by them, as defendants and their ancestors are Dumaldars and are having every right to grant or to withdraw the grant. However, they have not produced documents to show that they have withdrawn it.

41. In this regard, reliance is placed on Exs.D.5 and D.6. Exs.D.5 and Ex.P.3 are one and the same document. Ex.D.6 is the Diary No.282, wherein it is stated that, after coming into force of the Bombay Watans (Abolition) Act, 1950 on 01.08.1955 and as per the Circular No.WTN SR 1012 Inamadar was deleted from the list; Government is mentioned in revenue records regarding several properties including suit schedule property; then after The Bombay Merged Territories Miscellaneous Alienations Abolition Act, 1955 came into force, as per circular No.WTN SR 1012, Inamdar was deleted and for two survey numbers, including suit schedule property, Dumaldars' name was removed except the right of Government on public roads, water tanks, well and graveyards.

42. Learned counsel for the respondents further relies upon M.E.No.281, which is found on the backside of Ex.D.5. According to this document, there was partition amongst Defendant No.1 and his brothers, and in the said partition, several properties were allotted to the share of Defendant No.1, which includes R.S. No.141 measuring 5 acres 5 guntas.

43. The RTC pertaining to the suit survey number 141 is produced as Ex.P.2, which stands in the name of Defendant No.1. Plaintiffs have also produced Ex.P.3 -Diary Extract to show that some survey number properties were vested with the Government immediately after commencement of the Bombay Paragana and Kulkarni Watans (Abolition) Act, 1950. According to the said document, Shrimant Ramachandrarao Dattaji Rao Sindhe has given application seeking to record possession of certain survey numbers in to his name and certain other survey numbers into the names of farmers, who were in enjoyment of the same as Inam lands. In the said application, the suit Survey No.141 was shown as the land in possession of Shrimant Ramachandrarao Dattaji Rao Sindhe.

44. Plaintiffs have produced Ex.P.4 - RTC for the year 1989-90 of the suit Survey No.141, wherein name of plaintiff No.1 is entered in column No.9 & 12 (2) based on court order. Ex.P5 is the Diary No.1425, pertaining to the entry of the plaintiffs' names in the suit schedule property. This entry and RTC were shown because the present suit was decreed exparte.

45. Thereafter, defendants contested the matter by filing petition under Order IX Rule 13 CPC, and the suit was restored. Hence, the entries standing in the name of the plaintiffs as per Exs.P4 to P6 is of no consequence.

46. Ex.P.7 is the order passed in the revenue proceedings. Ex.P.8 is the document issued by the Tahsildar, Ramdurg, indicating that the plaintiffs' father, Sri. Venkappa Hanamappa Balannavar, R/o.Kullur, was in Sanadi service from 01.02.1962 and he was entitled to receive pension and other benefits.

47. The contention of defendants is that, the suit schedule property ought not to have been granted in favour of the plaintiffs by the revenue authorities, and they were not having any right to regrant the said property to plaintiffs because it was Ryotawari property and fully assessable to land revenue and thus, no regrant is required.

48. Learned counsel for respondent would further submit that Sanadi holding is Watan until the decision in Limbaji vs. Rama is overruled. When full assessment is levied on the Shetsanadi land, then the tenure is changed, and the holder becomes an ordinary Ryotwari tenure instead of Watan as before, and the holder becomes an ordinary occupant entitled to occupy the land so long as he pays the survey assessment.

49. Based on the above commentary to Shetsanadi lands in the text book, the learned counsel for the respondents vehemently submitted that the regrant in favour of appellants as per Ex.P.13 has no value in the eye of law.

50. It is to be noted here that there is no document except Ex.D.6 to say that suit schedule property is Ryotwari land. As discussed earlier, under Watan Abolition Act, it is mentioned as Ryotwari land in said document.

51. There is no Watan Abolition Act. In Clause No.2(g) of the Bombay Paragana and Kulkarni Watan Abolition Act, 1950, it is stated that the "Watan Act" means the Bombay Hereditary Offices Act, 1874 (Bombay Act No.3 of 1874). Schedule I of this Act shows that the said the Bombay Hereditary Offices Act, 1874 (Bombay Act No.3 of 1874) cease to operate immediately after commencement of the Bombay Paragana and Kulkarni Watan Abolition Act, 1950.

52. Admittedly, the suit property was an Inam land. As per Section 3 of the Bombay Paragana and Kulkarni Watans (Abolition) Act, 1950, certain Inams stood abolished. Section 3 is extracted below:

                  3. With effect from and on the appointed day, notwithstanding anything contained in any law, usage, settlement, grant, sanad or order-

                  1) all Paragana and Kulkarni watans shall be deemed to have been abolished;

                  2) all rights to hold office and any liability to render service appertaining to the said watans are hereby extinguished;

                  (3) subject to the provisions of section 4, all watan land is hereby resumed and shall be deemed to be subject to the payment of land revenue under the provisions of the code and the rules made thereunder as if it were an unalienated land:

                  Provided that such resumption shall not affect the validity of any alienation such watan land made in accordance with the provisions of section 5 of the Watan Act or the rights of an alienee thereof or any person claiming under or through him;

                  (4) all incidents appertaining to the said watans are hereby extinguished.

53. According to Section 4 of the said Act, watan land resumed under the provisions of this Act shall be regranted to the holder of the watan to which it appertained, on payment of occupancy fees.

54. Section 9 of the said Act says how the competent authority shall determine to whom such application for regrant is to be given. Admittedly, the defendants/respondents have not filed any application to the concerned authority for regrant.

55. Section 11 of the said Act makes it very clear that, any award made by the competent authority, subject to an appeal to Bombay Revenue Tribunal and decision of the Tribunal, shall be final, conclusive and shall not be questioned in any suit or proceedings before civil court. Thus, the regrant made in favour of the plaintiff cannot be questioned before the Civil Court, and it shall be challenged only before the Bombay Revenue Tribunal.

56. In any case, learned counsel for the respondents vehemently submits that the respondents have challenged the regrant order before the District Commissioner; however, the same was dismissed for want of jurisdiction, and they were directed to approach the competent authority/Tribunal. However, they did not approach the said authority. Hence, the regrant order in favour of the plaintiff's father, as per Ex.P.13, has attained finality.

57. It is to be noted here that even as per the provisions of Section 7 of the Bombay Merged Territories Miscellaneous Alienations Abolition Act, 1955 the occupancy rights in respect of land shall be regranted to the holder in some cases without payment of any occupancy price; sometimes, regranted by taking 12 times amount of the full assessment as occupancy price, and in some cases by taking 6 times amount of the full assessment as occupancy price; but the fact is that lands shall be regranted. Thus, the contention of respondents that as per M.E.No.282, this property was Ryotwari land, hence, no regrant is necessary is not correct proposition of law.

58. There is bar to entertain suit under Section 11 of Bombay Paragana and Kulkarni Watans Abolition Act, 1950, to entertain a suit in respect of regrant. In this regard the appellants counsel rely upon the judgments of Hon'ble Apex Court:

                  1. AIR 1967 MYS 111 in the case of Annaji Vasudev Dongarkar and others Vs. Venkatesh Ramchandra Deshpande and another, wherein at paragraph No.37 it is held as under:

                  "37. Regarding the jurisdiction of the civil Court, the only other question that survives is whether the civil Court can go into the merits of the decision of the revenue authorities in re-granting the suit lands to the defendants or in refusing such re-grant to the plaintiffs and correct any errorneous decision of revenue authorities."

                  2. (1968) 22 STC 416 in the case of Dhulabhai Vs. State of Madhya Pradesh and another, wherein it is held as under:-

                  "Special Bench considered Basappa's case (2) and distinguished it from the Firm of Illuri Subayya Chetty's case (3) on the ground that the former was not barred by S. 18-A as it did not exist.

                  The, Special Bench, however, made an observation to the following effect :

                  "In cases where the exclusion of the civil courts' jurisdiction is expressly provided for, the, consideration as to the scheme of the statute in question and the adequacy or the sufficiency of the remedies provided for by it may be relevant but cannot be decisive. But where exclusion is pleaded as a matter of necessary implication, such consideration would be very important, and in conceivable circumstances, 1-night even become decisive. If it appears that a statute creates a special right or a liability and provides for the determination of the right and liability to be dealt with by tribunals specially constituted in that behalf, and it further lays down that all questions about the said right and liability shall be determined by the tribunals so constituted, it becomes pertinent to enquire whether remedies normally associated with actions in civil courts are prescribed by the said statute or not."

                  (1) Where the statute gives a finality to the orders of the special tribunals the Civil Courts' jurisdiction must be held to be excluded if there is adequate remedy to do what the Civil Courts would normally do in a suit. Such provision, however, does not exclude those cases where the provisions of the particular Act have not been complied with or the statutory tribunal has not acted in conformity with the fundamental principles of judicial procedure."

59. Thus, specific provisions of the Section 11 of the Act coupled with the observations made in the above said judgment, it is very clear that the regrant in favour of plaintiffs' father cannot be questioned by the defendants/respondents in this suit. Furthermore, they have not questioned it before appropriate authority. But, their only contention is that this regrant under said provision is without the validity. However, the said contention is not accepted by this Court for the reasons already stated above.

60. Learned counsel for the defendants would further submit that, in the year 1952 itself, there was dispute between the father of the plaintiffs and the defendants with regard to possession of the suit schedule property. The application filed by the plaintiffs' father in respect of possession was rejected by the concerned authority. Hence, at no point of time, plaintiffs were in possession of the suit schedule property.

61. In this regard, learned counsel for the respondents has relied upon Exs.D.20 to D.22. Ex.D.20 is said to be the order passed by the Assistant Commissioner. However, this document does not bear the seal or signature of the authority which has passed this order. Furthermore, it is the original document produced by defendants. How defendants would be in custody of this document which ought to be maintained in the office of Assistant Commissioner is not forthcoming. Hence, the importance cannot be attached to Ex.D.20.

62. Under Ex.D.22, the revenue authorities recorded that the defendants had leased the suit schedule property to one Yamunappa; however, there was no registered lease agreement, and hence his name could not be entered in the RTC. Only because defendants are in possession of the property, they have given lease to said Yamunappa. When there is no admissible document to show that defendant No.1 has given this property on lease to third party, this document is not helpful for defendants to prove their possession.

63. As far as Ex.P.21 is concerned, it is the order passed by the Range Forest Officer, Ramadurg on 30.11.1988 i.e., during pendency of the suit. According to this document, plaintiffs have given complaint to Range Forest Officer that in the property which is in their possession, defendants have trespassed and cut the Eucalyptus trees. At that time, it was ordered that as already defendant No.1 has cut the trees, it shall be used by him, but he has to pay penalty of Rs.50/- and if the Civil Court has passes any order for paying compensation as damages to plaintiffs, then he is liable to pay such compensation. Thus, even this document will not establish the possession of defendants over suit schedule property.

64. Learned counsel for defendants would further submit that plaintiffs have not prayed for possession of suit schedule property from defendants. When there are concurrent findings of the Trial Court and the First Appellate Court, coupled with the revenue records standing in the name of the defendants since inception, this Court cannot interfere with the findings of the Trial Court and the First Appellate Court in respect of possession.

65. In this regard, he relied on the judgment of coordinate Bench of this Court in K. Jayaramaiah Vs. Nijalingaiah and others, (2026 (1) KCCR 782) wherein paragraph Nos.8 and 9 reads as follows:

                  "9. Having considered the admissions, pleadings and also the material available on record, the Trial Court has not committed any error in dismissing the suit in coming to the conclusion that suit for partial partition is not maintainable, when unequivocal admission was given by the plaintiff during the course of cross-examination that except the properties which have been sold, other family properties were not included. Hence, the Trial Court arrived at the conclusion that the sale made by the brother is illegal does not arise. Therefore, no grounds are made out to admit the appeal and frame substantial question of law."

66. The general rule is that the concurrent findings of Trial Court and First Appellate Court are the same. They shall not interfere with by High Court in second appeal. However, when such finding is completely erroneous, passed without any basis, then always the High Court can interfere with. In this regard, in the judgment of Hon'ble Apex Court in the case of Jaichand (Dead) through LRS & ORS. Vs. Sahnulal and ANR, Civil Appeal Nos.14138-14139/2024, wherein paragraph No.29 is extracted below:-

                  "29. The High Court in the Second Appeal can interfere with the findings of the trial Court on the ground of failure on the part of the trial as well as the first appellate Court, as the case may be, when such findings are either recorded without proper construction of the documents or failure to follow the decisions of this Court and acted on assumption not supported by evidence. Under Section 103, C.P.C, the High Court has got power to determine the issue of fact. The Section lays down:-

                  "Power of High Court to determine issue of fact: In any Second Appeal, the High Court may, if the evidence on the record is sufficient to determine any issue necessary for the disposal of the appeal,-

                  (a) Which has not been determined by the lower Appellate Court or both by the Court of first instance and the lower Appellate Court, or

                  (b) Which has been wrongly determined by such Court or Courts by reason of a decision on such question of law as is referred to in Section 100."

67. Relying on the above said judgment, this court is of the opinion that the First Appellate Court has not at all interpreted Ex.P.13. Hence, this court can interfere on finding of fact of possession.

68. Learned counsel for the defendants/respondents vehemently submit that the grant in favour of the plaintiffs, as evidenced by Ex.P.13, was made without authority, and therefore, he need not challenge the said grant.

69. In support of this contention, reliance is placed on the judgment of the Hon'ble Apex Court in A. Jitendernath Vs. Jubilee Hills Co-operative House Building Society and another, (2006 (3) KCCR 186) wherein short Note-B is extracted as below:

                  "SPECIFIC RELIEF ACT, 1963-Section 34- An order which was passed by an authority without jurisdiction need not be set aside, being a nullity, in the eyes of law never existed."

70. It is to be noted here that the defendants have sought to establish that the revenue authorities had no authority to regrant the suit schedule property in favour of the plaintiffs' father and that Ex.P.13 has no value in the eye of law. The said regrant as per Ex.P.13 is made under the provisions of the Bombay Paragana and Kulkarni Watans (Abolition) Act, 1950.

71. It is to be noted here that, in the year 1950, when the said Act came into force, the suit schedule property situated within Belagavi District was under Mumbai Province. Hence, at the time of inception, this Bombay Paragana and Kulkarni Watans (Abolition) Act, 1950 was in force. Based on the provisions of the said Act, the plaintiffs' father had applied for regrant, and accordingly, Sy.No.141 measuring 6 acres 1 gunta was re-granted to plaintiffs' father.

72. However, in the revenue documents produced by the defendants, as per M.E.No.281, only an extent of 5 acres 12 guntas in Sy.No.141 was allotted to the share of defendant No.1. As discussed above, the total extent of Sy.No.141 is 6 acres 1 gunta, and the remaining extent in the said survey number was not shown as allotted either to defendant No.1 or to his other brothers. Thus, there is clear discrepancy between the extent claimed by the plaintiffs in the plaint and the extent reflected in M.E.No.281 in favour of defendant No.1, indicating that both do not correspond to each other.

73. Always there is presumption under Section 133 of the Karnataka Land Revenue Act, 1964 that the entries in revenue records shall be presumed to be true unless it is rebutted.

74. In the instant case, as discussed above, the record of rights were standing in the name of defendants as on the date of filing of the suit. However, as discussed above after filing the suit, Ex.P.13 came into existence i.e. regrant in favour of father of plaintiffs. Always the revenue authorities have to pass such a regrant orders by making spot inspection and by making enquiry. Hence, there is presumption in respect of Ex.P.13 that by following due procedure, Ex.P.13 might have been issued. It cannot be challenged before Civil Court as discussed above. Thus, the regrant in favour of plaintiffs in the year 1999 shows that plaintiffs are in possession of the property as on the date of said re-grant.

75. The learned counsel for appellants relied on the judgment of Co-ordinate Bench of this Court in Galappa Vs. State of Karnataka, (ILR 1987 Karnataka 2989,) wherein paragraph Nos.1 and 3 reads as follows:

                  "Land S. No. 29 of Nagarbhavi village was a Thoti service inam land. All village offices were abolished under Karnataka Village Offices Abolition Act, 1961, w.e.f. 1-2-1963. The lands attached to the village offices were resumed by the State and they became liable for the payment of land revenue Sections 5 and 6 of the Karnataka Village Offices Abolition Act provided for regrant to the holder and authorised holders respectively. "Holder" and "Authorised Holders" are defined. The limited right given to these persons was to make an application for re-grant. The holders could be granted occupancy rights, on payment of three times the assessment in case of inferior village office and six times of the assessment in case of other village offices. On such regrant, the holder shall be deemed to be occupant or holder of ryotwari patta and shall be liable to pay land revenue to the State Government from the appointed day (i.e. 1-2-1963). In the case of authorised holder, it shall be regranted on payment of six times the full assessment, the other conditions being the same as are applicable to holders. In the instant case the petitioner was regranted these lands on 31-5-1983. On payment of three times or six times, as the case may be, he becomes an occupant or holder of ryotwari land. There is no material to indicate these payments. One important and valuable consequence that follows the payments is that the grantee becomes the occupant or holder of ryotwari land with effect from 1-2-1963 and he becomes liable to pay assessment from that day. By fiction the land, resumed to Government on 1-2-1963, stands vested in the regrantee from that day. This position is enunciated by this Court in Laxmangouda -vs- State of Karnataka (ILR (Karnataka) 1980 (2) 892 = 1981 (1) KLJ 1, thus:

                  "...From this pronouncement of the Supreme Court, it follows that the holder or the authorised holder of a Service Inam land did not get title to such land simultaneously with the coming into force of the Principal Act providing for resumption and regrant of such land to the holder or the authorised holder, but he got title to such land only after such actual regrant was made, though by such actual regrant, has title to the land related back to the date of commencement of the Principal Act."

                  Thus, by virtue of deeming provision, the grantee becomes the title holder from 1-2-1963, but only for the limited purpose as mentioned in the Act.

                  3. In the counter it is asserted that notice is sent to the Tahsildar on 29-9-1982. I have no reason to disbelieve. Though the land was in possession of the petitioner, the title stood in the State Government. The divesting takes place on the date the regrant is made, though it relates back to 1-2-1963. During the period intervening the appointed day and date of grant, the title vests with the State, which is represented by Tahsildar. Tahsildar holds the property, for and on behalf of true owner. If there is a regrant, notionally he divests himself of this right. The deeming provision in Section 5, which is equally applicable to Section 6, reads thus;

                  "...The holder shall be deemed to be an occupant or holder of a ryotwari patta within the meaning of the code in respect of such land and shall primarily be liable to pay land revenue to the State Government from the appointed date in accordance with the provisions of Code and the rules and orders made thereunder."

                  The legislative intent in enacting the deeming provision is to maintain the continuity of title, by fiction, for fixing the liability to pay land revenue. This is because the holder or authorized holder, being divested of the right to hold the property, has been allowed to enjoy the possession; as held by Supreme Court in M.L.B. Menon -vs- A.C. Estate Duty (AIR 1971 SC 2392) "the legal fiction also which has been introduced should only be limited to that purpose and there can be justification for extending it".

76. As per the principles of aforesaid case, even though the property was re-granted in the year 1999, it dates back to the date of commencement of Bombay Pargana and Kulkarni Watans (Abolition) Act, 1950 i.e., 25.01.1951. Hence, it is presumed that on the date of filing of the suit in the year 1987 plaintiffs are in possession of the suit schedule property.

77. Learned counsel for appellants vehemently submitted her arguments that the Courts have to take note of subsequent events that have taken place after filing the suit. In this regard, the learned counsel for the appellants relies upon the below mentioned judgments of Hon'ble Apex Court:-

                  1. (1975 1 SCC, 770) in the case of Pasupuleti Venkateswaralu Vs. The Motor and General Traders. Paragraph No.4 is extracted as below:

                  "4. We feel the submissions devoid of substance. First about the jurisdiction and propriety vis-a-vis circumstances which come into being subsequent to the commencement of the proceedings. It is basic to our processual jurisprudence that the right to relief must be judged to exist as on the date a suitor institutes the legal proceeding. Equally clear is the principle that procedure is the handmaid and not the mistress of the judicial process. If a fact, arising after the lis has come to court and has a fundamental impact on the right to relief for the manner of moulding it, is brought diligently to the notice of the tribunal, it cannot blink at it or be blind to events which stultify or render inept the decretal remedy. Equity justifies bending the rules of procedure, where no specific provision or fairplay is violated, with a view to promote substantial justice--subject, of course, to the absence of other disentitling (actors or just circumstances. Nor can we contemplate any limitation on this power to take note of updated facts to confine it to the trial Court. If the litigation pends, the power exists, absent other special circumstances repelling resort to that course in law or justice. Rulings on this point are legion, even as situations for applications of this equitable rule are myraid. We affirm the proposition that for making the right or remedy claimed by the party just and meaningful as also legally and factually in accord with the current realities, the Court can, and in many cases must, take cautious cognisance of events and developments subsequent to the institution of the proceeding provided the rules of fairness to both sides are scrupulously obeyed. On both occasions the High Court, in revision, correctly took this view. The later recovery of another accommodation by the landlord, during the pendency of the case, has as the High Court twice pointed out, a material bearing on the right to evict in view of the inhibition written into Section 10(3) (iii) itself. We are not disposed to disturb this approach in law or finding of fact."

                  2. (1976) 1 SCC 194 in the case of Rameshwar and Ors. Vs. Jot Ram and Anr. Paragraph No.9 is extracted as below:

                  "9. The impact of subsequent happenings may now be spelt out. First, its bearing on the right of action, second, on the nature of the relief and third, on its impotence to create or destroy substantive rights. Where the nature of the relief as originally sought, has become obsolete or unserviceable or a new form of relief will be more efficacious on account of developments subsequent to the suit or even during the appellate stage, it is but fair that the relief is moulded, varied or re-shaped in the light of dated facts. Patterson (Patterson v. State of Alabama, (1934) 294 US 600, 607) illustrates this position. It is important that the party claiming the relief or change of relief must have the same right from which either the first or the modified remedy may flow. Subsequent events in the course of the case cannot be constitutive of substantive rights enforceable in that very litigation except in a narrow category (later spelt out) but may influence the equitable jurisdiction to mould reliefs. Conversely, where rights have already vested in a party, they cannot be nullified or negated by subsequent events save where there is a change in the law and it is made applicable at any stage. Lachmeshwar Prasad Shuku v. Keswar Lal Chaudhuri (1940 FCR 874: AIR 1941 FC 5) falls in this category. Courts of justice may, when the compelling equities of a case oblige them, shape reliefs cannot rights- to make them justly relevant in the updated circumstances. Where the relief is discretionary, courts may exercise this jurisdiction to avoid injustice. Likewise, where the right to the remedy depends, under the statute itself, on the presence or absence of certain basic facts at the time the relief is to in ultimately granted, the Court, even in appeal, can take note of such supervening facts with fundamental impact Venkateswarlu (supra), read in its statutory setting, falls in this category. Where a cause of action is deficient but later events have made up the deficiency, the Court may, in order to avoid multiplicity of litigation, permit amendment and continue the proceeding, provided no prejudice is caused to the other side. All these are done only in exceptional situations and just cannot be done if the statute, on which the legal proceeding is based, inhibits, by its scheme or otherwise, such change in cause of action or relief. The primary concern of the Court is to implement the justice of the legislation. Rights vested by virtue of a statute cannot be divested by this equitable doctrine (See Chokalingam Chetty : 54 MLJ 88 (PC). The law stated in Ramji Lal v. the State of Punjab (ILR (1966)( 2 Punj 125: AIR 1966 Punj)) is sound:

                  "Courts do very often take notice of events that happen. subsequent to the filing of suits and at times even those that have occurred during the appellate stage and permit pleadings to be amended for including a prayer for relief on the basis of such events but this is ordinarily done to avoid multiplicity of proceedings or when the original relief claimed has, by reason of change in the circumstances, become inappropriate and not when the plaintiff's suit would be wholly displaced by the proposed amendment (see Steward v. The North Metropolitan Tramways Company (1885) 16 QBD 178)) and a fresh suit by him would be so barred by limitation.

                  One may as well add that while taking cautious judicial cognizance of 'post-natal' events, even for the limited and exceptional purposes explained earlier, no court will countenance a party altering, by his own manipulation, a change in situation and plead for relief on the altered basis."

                  3. (2004) 8 SCC 76 in the case of Kedar Nath Agrawal(Dead) and Anr. Vs.Dhanraji Devi(Dead) by LRs and Ors. Paragraph No.16 is extracted as below:-

                  "16. In our opinion, by not taking into account the subsequent event, the High Court has committed an error of law and also an error of jurisdiction. In our judgment, the law is well settled on the point, and it is this: The basic rule is that the rights of the parties should be determined on the basis of the date of institution of the suit or proceeding and the suit/action should be tried at all stages on the cause of action as it existed at the commencement of the suit/action. This, however, does not mean that events happening after institution of a suit/proceeding, cannot be considered at all. It is the power and duty of the court to consider changed circumstances. A court of law may take into account subsequent events inter alia in the following circumstances:

                  (i) The relief claimed originally has by reason of subsequent change of circumstances become inappropriate; or

                  (ii) It is necessary to take notice of subsequent events in order to shorten litigation; or

                  (iii) It is necessary to do so in order to do complete justice between the parties."

78. As discussed above in the instant case, the regrant in favour of plaintiff is during pendency of the suit. Thus, the trial Court and First Appellate Court ought to have taken notice of such subsequent event of regrant. Of Course, the regrant order was not produced before Trial Court. But, it is produced before First Appellate Court and marked with consent as per Ex.P13. Thus, respondents absolutely have no objection about the said document. The subsequent events that had taken place in favour of the plaintiff ought to have been considered by the First Appellate Court. But, it did not do so. Thus, the judgment of First Appellate Court on this point is erroneous in this regard.

79. The above discussion reveals that Courts below are not right and not justified in holding that suit was not maintainable. The present suit is filed praying for declaration and permanent injunction and this suit is not filed to reconsider or to regrant the property in favour of plaintiffs. Hence, Karnataka Village Offices Abolition Act, 1961 cannot be a bar to file the suit of present nature. However, without considering these aspects properly, the trial Court and First Appellate Courts have dismissed the suit on the ground that suit is hit by Karnataka Village Offices Abolition Act, 1961.

80. As discussed above, the First Appellate Court is not justified in ignoring the regrant order as per Ex.P.13 and only based on mutation entries, the First Appellate Court and the trial Court came to the wrong conclusion that plaintiffs failed to prove their possession. Accordingly, substantial question of law No.1 and 3 are answered in the

Negative.

81. In view of finding on substantial question of law Nos.1 to 3, this Court proceeds to pass the following:

                  ORDER

                  Appeal filed under Section 100 CPC is allowed by setting aside the judgment and decree dated 22.01.2008 passed in RA No.45/2007 (Old RA No.5/2001) on the file of Civil Judge (Senior Division), Ramdurga and by setting aside the Judgment and Decree dated 11.04.2001 passed in OS No.19/1987 on the file of Civil Judge (Junior Division) Ramdurga.

                  Suit of plaintiffs is decreed with costs.

                  Plaintiffs are declared as owners in possession of the suit schedule property.

                  Permanent injunction is granted in favour of plaintiffs against defendants.

                  Defendants are hereby restrained from interfering with the peaceful possession and enjoyment of plaintiffs over suit schedule property.