:1: .4 IN THE HIGH COURT OF KARNATAKA CIRCUIT BENCH AT DHARWAD Dated this the 12 th day of December 2011 Before THE HON’BLE MR.JUSTICE H.N.NAGAMOHAN DAS Reaular Second ADreaI No.1702/2007 CIw R.S.A. Nos.1703. 1704. 1705 & 1706 of 2007 BETWEEN: 1. Union of India, Represented by its Secretary. Ministry of Defence, Parliament House, New Delhi. 2. The Chief Administrative Officer. Air Force Sambra. Belgaum-590001. . . .Appellants (common in all appeals) (By Sri. S.N.Rajendra, Advocate) AND: 1. Smt. Renuka, major, W/o Shantinath Savadatti, Rio Gandhi Nagar, Belgaum-590001. 2. Shri. Appasaheb. major, Sb Gundu Ramagoudanavar, Rio Gandhi Nagar, Belgaum-590001. :2: 3. The State of Karnataka. Rep. by Deputy Commissioner, Belgaum. . . .Respondents (in RSA No.1702/2007) (By Sri. P.V.Gunjal for Vardhaman Gunjal, Adv., for Ri & R2 Sri. P.H.Gotkhindi, Addi. Govt. Advocate for R3) 1. Smt. Kusumavva, major. W/o Anna Saheb Doddannanavar. Resident of Belgaum. Represented by her Power of Attorney Holder Appa Saheb, Sb Gundurama Gowdanawar, Agriculturist. Gandhi Nagar, Belgaum-590001. 2. The State of Karnataka, Rep. by Deputy Commissioner, Belgaum . . .Respondents (in RSA No.1703/2007) (By Sri. P.V.Gunjal for Vardhaman Gunjal, Adv., for RI Sri. P.H.Gotkhindi, AddI. Govt. Advocate for R2) I. Sri. Ananth Major. Sb Laxman Muchandikar. Rio. Gandhi Nagar Belgaum Represented by his Power Of Attorney Holder, Appasaheb. major, Sb Gundu Ramagoudanavar, Rio Gandhi Nagar, Belgaum-590001. / :3: 2. The State of Karnataka, Rep. by Deputy Commissioner, Belgaum. ...Respondents (in RSA No.170412007) (By Sri. P.V.Gunjal for Vardhaman Gunjal, Adv., for RI Sri. P.H.Gotkhindi, AddI. Govt. Advocate for R2) 1. Sri. Shantaram, Major. Sb Shripad Sunthanakar, Resident of Bijapur, Represented by his Power Of Attorney Holder, Shri. Appasaheb, major, Sb Gundu Goudanavar, Agriculturist. Gandhi Nagar, Belgaum-59000I. 2. The State of Karnataka, Rep. by Deputy Commissioner, Belgaum. .. .Respondents (in RSA No.1705/2007) (By Sri. P.V.Gunjal for Vardhaman Gunjal, Adv., for RI Sri. P.H.Gotkhindi, AddI. Govt. Advocate for R2) 1. Smt. Padmawwa, Major, Wbo Babu Kusanale, Agriculturist. Rio. Gandhi Nagar. Belgaum-590001. 2. The State of Kamataka. Rep. by Deputy Commissioner. Belgaum. . . .Respondents (in RSA No.1706/2007) (By Sri. P.V.Gunjal for Vardhaman Gunjal, Adv., for RI Sri. P.H.Gotkhindi, AddI. Govt. Advocate for R2) :4: These regular second appeals is filed under Section 100 of CPC against the judgments and decrees dated 08.08.2006 passed in R.A.Nos.67/2005, 64/2005, 68/2005, 85/2005 and 66/2005 respectively on the file of the Additional Civil Judge ‘Sr. Dn.) Belgaum, dismissing the appeal and confirming the judgment and decree dated 09.09.2004 passed in O.S.Nos.765/2001. 762/2011. 76612011, 763/2011 & 764/2011 respectively, on the file of the I Additional Civil Judge (Jr. Dn.), Belgaum. These appeals coming on for admission this day, the court delivered the following: JUDGMENT These appeals are directed against the common judgment and decree dated V September 2004 in O.S. Nos.762/200 1. 763/2001 to 766/2011 passed by the Civil Judge (Jr. Dii.), Belgaum and the judgment dated 8.8.2006 in R.A.Nos.64/2005 to 68/2005 passed by the Civil Judge (Sr. Dn.), Belgaum. 2. Appellant and respondent-Government of Karnataka are defendants and respondents 1 and 2 are the plaintiffs before the Trial Court. In this judgment, for convenience. parties are referred to their status before the Trial Court. :5: 3. Plaintiffs contend that they are the owners of different bits of land in Sy.No.883/3, 834/1. 834/2/1, 835/2/1. 835/1 situated within the limits of Belgaum City Corporation. Belgaum. Plaintiffs contend that plaint schedule properties are their ancestral property; all the revenue records are in the name of plaintiffs and they paid taxes. Plaintiffs are in possession and enjoyment of these lands since time immemorial. In the month of November 2001, the defendants tried to interfere with the plaintiffs’ possession and enjoyment of plaint schedule properties. At that time, plaintiffs filed separate suits for declaration of title and permanent injunction. 4. The defendants contested the proceedings by filing written statement. In the written statement, defendants contended that they have acquired the plaint schedule properties tinder the provisions of Defence of India Rules. Subsequently, under separate sale deeds they have sold portions of plaint schedule properties in favour of Government of Karnataka and leased certain properties in favour of third 6 party D.-r. 4nts c nntnd that th plaintiffs are not in possess. ht plaint schedule piop rty and they are nt the ow”. m-. am On thesa nroi:rids defendants opposed r tin) of the plaintiffs. 5 C • . basis of the pleadings. the Trial Couit framed the followi.,. ues in 0 S No 762/2001 for its consideration I the plaintiff prove that he is absolute of the suit properties? 2 ‘ c. k.fendants prove that Government vie n ‘ners of the suit properties by way ‘;sit’on” 3. .e t. s suit is not maintainable in law? 4 . . i aintiff pws’s trt a:i?g€d -, b3, the Dttenda 1 ,irt r cur ,&‘, t ce t ai ‘‘f i, cct :7: 7. Whether the plaintiffs are entitled for the relief of declaration as prayed? 8. Whether the plaintiffs are entitled for the relief of permanent injunction as prayed? 9. What order or decree?” Identical issues were framed in other suits also. 6. Before the Trial Court. plaintiffs examined three witnesses as P.Ws.1 to 3 and got marked Exs.P.1 to P.85. Defendants examined two witnesses as D.Ws.1 and 2 and got marked Exs D. I to D.21. The Trial Court on appredation of the pleadings, oral and documentary evidence held that plaintiffs have not produced any title deeds and therefore, they are not entitled for declaration of title. But, the plaintiffs have produced oral and documentary evidence in proof of their possession. Consequently. under the impugned judgment. the Trial Court dismissed the suit for declaration of title and decreed the suit for permanent injunction. Aggrieved by this judgment of the Trial Court, the defendants filed appeals in R.A.Nos.64/2005 to 68/2005. Plaintiffs filed cross-objections ‘--a 6’ :8: insofar as it relates to denial of declaration of title by the Trial Court. The jt Appellate Court, after hearing the arguments, framed the following points for its consideration: “1. Whether the plaintiff proves that they are absolute owner and possession of suit schedule property? 2. Whether defendants prove that Government became the owner of the suit property by way of acquisition? 3. Whether plaintiffs are entitled for the relief of declaration as prayed? 4. VVhether the lower court has property appreciated the oral and documentary evidence produced by both parties? 5. Whether the lower court judgment and decree required to be set aside? 6. What order?” On re-appreciation of the entire material on record, the 1 s1 Appellate Court held that merely because of the reason that r :9. plaintiffs have not produced any title deeds, they are not entitled for declaration of title is bad in law. By considering the oral and documentary evidence on record: the 1 Appellate Court held that plaintiffs are entitled for declaration of title and also injunction. Consequently, under the impugned judgment, the I si Appellate Court dismissed the appeals filed by the defendants and allowed the cross-objections filed by the plaintiffs. Hence, these second appeals. 7. It is the specific case of the plaintiffs that they are owners of different bits of land in different survey numbers as stated above. Both the Courts below on careful examination of the documentary evidence placed by the plaintiffs held that they are in undisturbed possession right from the year 1943. It is the case of the plaintiffs that they are in possession of the plaint schedule property having inherited the same from their ancestors. When such being the case, the question of plaintiffs producing the title deeds like sale deed etc. will not arise. Therefore, the Appellate Court, on re-appreciation of 10: the entire material on record rightly held that plaintiffs are entitled for declaration of title. 8. Defendants specifically contend that they have acquired the plaint schedule property under the provisions of Defence of India Rules. In support of this contention. defendants have produced Ex.D.6, the Gazetteer of Bombay Government. On careful perusal of this Gazetteer-Ex.D.6, both the Courts below held that it was only a proposal for acquiring the plaint schedule property and also other lands. There is no evidence in proof of acquisition of the plaint schedule property and taking possession of the same. In the absence of any such evidence on record. the finding of both the Courts below that defendants have acquired the plaint schedule property as not proved is in accordance with law. 9. The 1 defendant contends that they have sold certain portion of the plaint schedule property to the Government of Karnataka as per Ex.D.7 and some other portions came to be leased to D.W.2 as per Ex.D.1 1. In :11: support of this contention, defendants have produced Ex.D.7. the certified copy of the sale deed, and Ex.D.1 I — a lease deed. Thouah defendants have examined D.W.2 — the lessee. in support of this contention, except the oral evidence of D.W.2 and Exs.D.7 & II there are no other documents to show that they are in possession of the plaint schedule property. Further, it is not specified which plaint schedule property covers under the sale deed and which plaint schedule property covers under the lease deed. This defence taken by the defendant is not specific, clear and ambiguous. On the other hand, the nature of defence in the written statement is very vague. In the circumstances, the impugned judgment and decrees of the Courts below are in accordance with law. 10. Shri. S.N.Rajendra, learned counsel for the I defendant contends that all the plaintiffs have not stepped into the witness box and they have examined one of the plaintiffs as power of attorney holder and, therefore, his evidence cannot be taken into consideration. In support of this ‘S :12: contention, reliance is placed on a judgment of the supreme Court in Janki Vashdeo Bhojwani and Another Vs. Indusind Bank Limited and Others reported in 2005(1) KCCR 227. The Supreme Court in Janki’s case held that when there is conflict of interest between the parties to the proceedings and the power of attorney holder, then, in such an event, the evidence of power of attorney holder cannot be taken into consideration in proof of a fact alleged by the party. In the instant case, it is not shown to me as to what is the conflict of interest between one plaintiff and the power of attorney holder. In the absence of any such conflict of interest involved in the present case, I decline to accept the contention of the learned counsel for the defendant. On the other hand, it is the specific case of all the plaintiffs that they are in possession and enjoyment of different bits of land in different survey numbers as stated above. Further, it is the case of all the plaintiffs that they are in possession of plaint schedule property by way of inheritance from their ancestors. Therefore, there is no bar or impediment for the plaintiffs to examine their power of attorney holder. In 13: the circumstances, the law laid down by the Apex Court in Janaki’s case has no application to present case. I find no substantial question of law that arise for consideration in these second appcals. Accordingly, appeals are hereby dismissed. Sd JUDGE Kms