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2023 Supreme(Online)(Kar) 36911
PRINCIPAL BENCH AT BENGALURU
Ashok S. Kinagi, J
Benedict Fernandes – Appellant
Versus
Sister Christian Fernandes – Respondent
RSA No. 1889 of 2016
For the Appellants/Petitioners: Prasanna V R
The grant of land under the Darkasth rules extinguishes any pre-existing 'kumki' privileges over the property, and in the absence of title deeds to prove ownership or possession, a claim for declaration of title based solely on such privileges is unsustainable.
Headnote:(A) Karnataka Land Reforms Act, 1961 - Kumki privileges over government land - Claim for declaration of title and permanent injunction - Evidence showed land in dispute had been granted to defendants under Darkasth rules - Once land is granted, it loses its character as kumki land - Plaintiffs failed to prove ownership or exclusive possession.
(B) Appeals - Second Appeal - Concurrent findings of fact - Appellate court cannot interfere with concurrent findings of trial court and first appellate court unless there is a substantial question of law - No perversity in findings demonstrated.
Facts of the case:
The plaintiffs claimed title over 'X' schedule property based on long-term enjoyment as 'kumki' land attached to their 'A' schedule property. They alleged the defendants were attempting to record the property in their names and interfere with their possession. The defendants contended the 'X' schedule property was granted to the first defendant under the Darkasth rules, and they had been in continuous possession and made significant improvements. Both lower courts dismissed the suit, finding the plaintiffs failed to establish their claims.
Findings of Court:
The Court held that the property was legally granted to the first defendant and that the plaintiffs failed to produce title deeds. The evidence confirmed the defendants' possession and the rejection of plaintiffs' claims by land tribunals. The Court affirmed that once land is granted under the Darkasth rules, any existing 'kumki' privilege is extinguished.
Issues: Whether the plaintiffs proved their title or possession of the 'X' schedule property as kumki land and whether they were entitled to the relief of permanent injunction.
Ratio Decidendi: When property is legally granted to a party under the Darkasth rules, any claim of 'kumki' privilege over such property by third parties is extinguished, and the grantee becomes the rightful owner and possessor.
Result: Appeal dismissed.
| Table of Content |
|---|
| 1. nature of kumki land claims and disputes regarding possession. (Para 1 , 2 , 3 , 4 , 5 , 6) |
| 2. procedural history and findings of lower courts. (Para 7 , 8 , 9 , 10 , 11) |
| 3. assessment of evidence regarding possession and documentary claims. (Para 12 , 13 , 14 , 15 , 16 , 17) |
| 4. conclusion that grant of land extinguishes kumki privileges. (Para 18 , 19 , 20 , 21) |
THIS RSA IS FILED UNDER SEC. 100 OF CPC., AGAINST THE JUDGMENT AND DECREE DATED 30.07.2016 PASSED IN RA NO.39/2011 ON THE FILE OF THE PRL. SR. CIVIL JUDGE AND JMFC, BANTWAL, D.K DISMISSING THE APPEAL AND CONFIRMING THE JUDGMENT AND DECREE DATED 13.4.2011 PASSED IN OS NO.23/1994 ON THE FILE OF THE PRL. CIVIL JUDGE AND JMFC, BANTWAL, D.K.
THIS APPEAL, COMING ON FOR ADMISSION, THIS DAY, THE COURT DELIVERED THE FOLLOWING:
JUDGMENT
2. Parties are referred to as per their ranking before the trial Court. The appellant is defendant No.2(h). Respondent Nos.1 to 6 are the defendants. Respondent Nos.7 to 14 are the plaintiffs.
3. The brief facts leading rise to filing of this appeal are as under:
It is the case of the Plaintiffs that father of plaintiff No.1 Doomappa Shetty and husband of plaintiff No.1 Monthu Fernandes were tenants in respect of part I and II of plaint 'A' schedule property. After the Karnataka Land Reforms Act, 1961, came into force, they were declared as occupants in respect of the said properties. After the demises of Doomappa Shetty and Monthu Fernandes, the plaintiffs are in lawful and exclusive possession of plaint 'A' schedule property. Part I and II of plaint 'X' schedule properties were adjacent to the Government waste vacant land forming direct kumki to part I and II of 'A' schedule property forming compact block consisting of full of green leaves, cashew plants and other fruit bearing trees. The second plaintiff is actually residing in part II of 'X' schedule land constructing house, Kottige, etc. The plaintiff No.2 dug a field in the said land. In the year 1988, plaintiff No.2 credited the encroachment fee to the Government under the mispatta 7. Major portion of 'X' schedule land is surrounded by mud agalu and fence surrounding the boundaries. In the year 1991, certain portions of the kumki land to the extent detailed in the order was acquired for a hospital by the Deputy Commissioner as per the notice dated 04.10.1991. In the said notice, kumki rights of plaintiffs are admitted by the Government. Hence, they are in absolute possession of 'X' schedule land and are enjoying the entire 'X' schedule land since 40 years, as of right openly without interruption over statutory period. Hence, they perfected their title and right, by the concept of adverse possession.
4. It is learnt that the defendants are making preparation to concoct revenue records at Taluka office, Bantwal, to show their possession over 'X' schedule and making preparation to get kumki land assigned in their favour by demarcating the survey numbers as 184. No notice was issued with regard to any proceedings to the plaintiffs. Defendant No.2 claiming to be the family member of the landlord, started to pose her wicked eyes over kumki land. The first defendant is an old age man who is helping the 2nd defendant in all her activities, they have no right whatsoever over the 'X' schedule land. The defendants tried to dispossess the plaintiffs from the 'X' schedule land, but due to timely intervention they were not successful in driving the plaintiffs away. Hence, cause of action arose for the plaintiffs to file the suit for declaration of title and consequently relief of permanent injunction.
5. Defendant No.1(b) and (c) filed written statement denying the averments made in the plaint. It is contended that the suit is not maintainable. It is contended that land bearing Survey No.178/1 which is denoted as 178/1A measuring 4.80 acres and Survey No.184/1 measuring 5.46 acres granted on darkast in favour of defendant No.1, who is the father of other defendants. Defendant No.1 was en
