- 1 - RSA No. 419 of 2010 IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 17TH DAY OF JULY , 2026 BEFORE THE HON'BLE MR. JUSTICE H.P.SANDESH REGULAR SECOND APPEAL NO. 419 OF 2010 (DEC/INJ) BETWEEN: PALAIAH S/O PALAIAH @ SANNAIAH DEAD BY HIS LRS 1. SRI RANGANNA S/O LATE PALAIAH AGED ABOUT 46 YEARS 2. ANJANEYA S/O LATE PALAIAH AGED ABOUT 41 YEARS 3. SANNAPPA S/O LATE PALAIAH AGED ABOUT 36 YEARS 4. SMT. GOWRAMMA W/O RAMAPPA AGED ABOUT 33 YEARS ALL ARE AGRICULTURIST R/AT KALVEHALLY VILLAGE CHALLAKERE TALUK CHITRADURGA DISTRICT-577 522. …APPELLANTS (BY SRI. G. BALAKRISHNA SHASTRY, ADVOCATE) AND: 1. THE STATE OF KARNATAKA BY ITS CHIEF SECRETARY R Digitally signed by DEVIKA M Location: HIGH COURT OF KARNATAKA - 2 - RSA No. 419 of 2010 VIDHANA SOUDHA BENGALURU. 2. THE DEPUTY COMMISSIONER CHITRADURGA DISTRICT CHITRADURGA-577501. 3. THE TAHASILDAR CHALLAKERE TALUK CHALLAKERE-577501. 4. MANDAL PANCHAYATH DODDAULLARTHI NOW VILLAGE PANCHAYATH DODDAULLARTHI BY ITS SECRETARY. 5. PALAIAH P SINCE DECEASED REPRESENTED BY LEGAL HEIRS 5(A) GADRI PALLAIAH S/O PALAIAH MAJOR 5(B) JAI PALAIAH S/O PALAIAH MAJOR R/O KALEVAHALLI VILLAGE CHALLAKERE VILLAGE-572522. …RESPONDENTS (BY SMT. MALA B. BHUTE, AGA FOR R1 TO R4; R5(A) & R5(B) SERVED UNREPRESENTED) THIS RSA IS FILED UNDER SECTION 100 OF CPC., AGAINST THE JUDGMENT AND DECREE DATED 7.11.2009 PASSED IN R.A.NO.104/2007 ON THE FILE OF THE CIVIL JUDGE (SR.DN) CHALLAKERE, DISMISSING THE APPEAL AND CONFIRMING THE JUDGMENT AND DECREE DATED 10.07.2007 PASSED IN O.S.NO.201/2001 ON THE FILE OF THE CIVIL JUDGE (JR.DVN) & JMFC, MOLAKALMURU AND ETC. - 3 - RSA No. 419 of 2010 THIS APPEAL HAVING BEEN HEARD AND RESERVED FOR JUDGMENT ON 09.07.2026 THIS DAY, THE COURT PRONOUNCED THE FOLLOWING: CORAM: HON'BLE MR. JUSTICE H.P.SANDESH CAV JUDGMENT Heard the counsel appearing for the appellants and also the learned AGA appearing for respondent Nos1 to 4. Respondent No.5(A) and 5(B) though served, did not choose to appear before the Court. 2. This Regular Second Appeal is filed against the judgment and decree of dismissal of suit filed for declaration and injunction in O.S.No.201/2001 and confirmation made by the appellate Court in RA No104/2007. The suit was filed in the year 1990 numbered as O.S.No.29/1990 on the file of Principal Munsiff Court, Chitradurga and later it was transferred to Civil Judge Junior Division, Challakere and re-numbered as OS No.147/1994 and later numbered as 201/2001. 3. The brief facts of the case are that the plaintiffs have filed suit against the defendants for seeking the relief of declaration and permanent injunction. The case of the plaintiffs is that, plaintiffs is the owner in - 4 - RSA No. 419 of 2010 possession and enjoyment of the suit schedule properties and the same is an ancestral property of the plaintiffs and the same has been allotted to him during partition dated 12.01.1989. The plaintiff is paying land revenue to the government. In the land revenue records, the name of the plaintiffs and their father were appearing and the plaintiff and his father are in actual possession and enjoyment of the suit schedule property and after the death of plaintiff’s father the plaintiffs is in exclusive possession of the suit land since from the date of partition. In the suit landed property, the plaintiff’s father has built his residential farmhouse in the eastern portion and he has also located cattle shed, sheep pens. The plaintiffs has orally permitted three Muslim persons and one Chillekyata family to put up temporary huts on the northern portion of scheduled land since 10 years, the remaining land is cultivated by the plaintiffs. The plaintiffs have left some portion towards eastern side for the purpose of grazing his cattles. There is a kharab of only 26 guntas and the remaining land has been under cultivation by the plaintiffs. The katha of the schedule land continued in the name of father of the plaintiffs, as he was - 5 - RSA No. 419 of 2010 elder brother among his brothers. The name of the plaintiffs is continued in cultivator's column as per his physical position. The fifth defendant is harassing the plaintiffs by using political position, due to ill will and managed to influence the third defendant to make an illegal entries in mutation, phanies etc., to the effect that 9 acres of land out of Sy.No.217 in the suit schedule land have been acquired by government during 1938-39. This entry has been made by the third defendant by passing an order on 25.11.1988 arbitrarily behind the back of the plaintiffs and without his knowledge. In the month of August 1989 when the fifth defendant and his followers threatened the plaintiffs to dispossess in the suit schedule land, then the plaintiffs rushed to the Taluk Office and Village accountant and obtained copies of RTC and then only came to know that third defendant in collusion with his subordinate officers has altered the extent of kharab in revenue record from 26 guntas to 5 acres 27 guntas without any basis at the instigation of fifth defendant, neither any part of suit land has been acquired by the government or by any authority at any point of time. So the entries made out by third defendant is illegal. - 6 - RSA No. 419 of 2010 Moreover, the government has not at all taken possession of any of the land belongs to the plaintiffs during 1938-39. No land acquisition proceedings were held in respect of suit schedule property. So the plaintiff's father and the plaintiffs have perfected their title to the alleged 9 acres of land which is portion of schedule land being in continuous uninterrupted peaceful possession of the land over a statutory period to the knowledge of the Government and all publics, as such if there was any title of the Government, in the schedule land same is extinguished by law of adverse possession. Hence, the plaintiffs filed the present suit against the defendants for the relief of declaration and permanent injunction. 4. In pursuance of suit summons, defendant Nos.1 to 3 appeared through AGP and defendant Nos.4 and 5 appeared through their counsel before the trial Court. Defendant Nos. 1 to 3 in their written statement contended that plaintiff is not at all the owner and in possession and enjoyment of the suit schedule property. They have also denied that the suit schedule property is the ancestral property of the plaintiffs and it has fallen to the share during the partition dated 12.01.1989. It is - 7 - RSA No. 419 of 2010 contented that an extent of 9 acres of scheduled land had been acquired by the government in 1938-1939 itself, as can be seen from the entry in the index of land of Kaluvehally Village at Sl.No.841. The houses mentioned by the plaintiffs have been constructed in the acquired portion of the schedule land and not in the remaining agricultural land itself. Further, it is contended that the entries in the RTC register, mutation and other village accounts with regard to the acquisition of 9 acres of land for construction of houses are quite in order but, had been only left out by oversight, the order of the Tahasildar and bearing Order No.LAC.SR.21/88-89 need not have been informed to the plaintiffs. Since it was not a fresh order, but only an incorporation of the entries ordered to be made during the year 1940 vide Sl.No.41 in R.R.5 registers. Further, the defendant Nos.1 to 3 denies all the allegations made out in the suit plaint as false, frivolous and not maintainable under the law. Hence, they prayed for dismissal of suit. 5. Further, defendant Nos.4 and 5 in their written statement denied all the allegations made in the suit plaint as false, frivolous and vexatious and there is no - 8 - RSA No. 419 of 2010 cause of action and the suit is hit by Section.304(2) of the Karnataka Zilla Parishad Act. It is contended that the suit is not properly valued and the government handed over the possession of suit land to the extent of 9 acres for the purpose of Gramatana to the Village Panchayat and contend that the plaintiffs is not at all entitled to any relief. 17 of Kaluvehally Village measuring 17 acres and out of the same, the Government has acquired 9 acres of land for the purpose of Gramatana and handed over the possession of the land to the Village Panchayath. In the said 17 acres, 5 acres and 27 guntas is kharab land. In the kharab land there is a big granite quarry and it occupies an area of 2 acres and in remaining portion there is a road under thangadake plants. Any how kharab land is the government property. The plaintiffs is in possession of only 2 acres 13 guntas, wherein he erected farmhouse and also he permitted 3 muslims and 2 chillekyathana families to construct huts. Totally he used 2 acres 13 guntas for non agriculture purpose. After taking possession of the land by the Village Panchayath, the Village Panchayath granted 20 sites to the different persons. The persons who were granted sites built their - 9 - RSA No. 419 of 2010 houses. The remaining site is in the control of Mandal Panchayath. Out of 9 acres acquired as used as Gramatana, now the plaintiffs on the basis of false entries in revenue records is trying to cultivate Gramatana property and he has no right over the Gramatana land to cultivate it. The plaintiff has no title, right or possession over the suit schedule property. 6. The trial Court considering the pleadings of the plaintiffs as well as the written statement of defendants, framed in total 15 issues which reads as follows: a. Whether the plaintiffs proves that he is the owner in possession and enjoyment of the suit schedule property? b. Whether the plaintiffs proves that the suit property is the ancestral property of himself having allotted to his share on partition between the plaintiffs and his cousins that took place on 12.01.1989? c. Whether the plaintiff proves that neither the suit schedule land nor any part of it has been acquired by the Govt., or any authority at any point of time? d. Whether the plaintiff proves that the defendant No.3 has not followed the procedure as contemplated in Land Revenue Act? e. Whether the plaintiffs proves that no compensation is paid to him, or ancestors or predecessors, and no possession of suit land was taken by the Govt.,? f. Whether the plaintiffs proves that he has perfected his title to the alleged 9 acres of land which is the suit schedule land by way of - 10 - RSA No. 419 of 2010 continuous uninterrupted, adverse, peaceful possession? g. Whether the plaintiff proves that defendants are attempting to interfere and obstructing his peaceful possession? h. Whether the plaintiff is entitled for permanent injunction? i. Whether the plaintiff proves that he is entitled for cancellation of entry in mutation No.29/88- 89 passed by defendant No.3 in AD CR 21/88- 89 dated 25.11.1988? j. Whether the defendant Nos. 1 to 3 proves that the suit is barred by time and not maintainable in view of KLR Act? k. Whether the defendants prove that the plaintiffs is in possession of only 2 acres 13 guntas in the suit schedule property? l. Whether the defendant Nos.4 and 5 proves that the Government handed over the possession in suit land to an extent of 9 acres for the purpose of Gramatana to the Village Panchayath? m. Whether the defendant Nos.4 & 5 prove that the suit is hit by Section 304(2) of Karnataka Zilla Parishat Act? n. Whether the defendant Nos.4 & 5 prove that the suit is not properly valued, court fee paid is insufficient? o. What order and decree? 7. The plaintiffs in order to prove his case examined plaintiffs No.1 (a) got examined himself as P.W.1 and also got examined three more witnesses and got marked documents as Exs.P1 to P33. Defendants neither adduced any evidence nor produced any documents. The trial Court, having considered both oral and document evidence, while answering all the issues as negative, except answering Issue No.10 in partly - 11 - RSA No. 419 of 2010 affirmative and partly negative. Whether the defendant Nos.1 to 3 proves that suit is barred by time and not maintainable in view of Karnataka Land Revenue Act and answered the issue No.13 accordingly. The suit is hit by Section 304(2) of Karnataka Zilla Parishath Act. 8. Being aggrieved by the said order, the plaintiffs preferred an appeal in RA No.104/2007. The appellate Court having considered the grounds urged in the appeal memo, the following points were framed for consideration: I. Whether the judgment and decree passed by the trial Court is perverse, capricious, arbitrary, and it calls for interference by the trial Court? II. What order? The said points for consideration are also answered in negative and confirmed the judgment of the trial Court. Hence the present Regular Second Appeal is filed before this Court. 9. The main grounds which have been urged in this second appeal is that both the Courts have committed an error and though the trial Court has raised 15 issues touching the issue with regard to the ownership and possession and whether this land was acquired by the - 12 - RSA No. 419 of 2010 Government and whether the order passed by the Tahasildar is without following the procedure under the Karnataka Land Revenue Act, as regards whether the compensation was paid to the plaintiffs, and also the pay regarding adverse possession paid to the plaintiffs, and also whether the suit is barred by limitation and also under the Karnataka Land Revenue Act and also whether the defendants have handed over the possession of the suit land to an extent of 9 acres in favour of Grama Panchayath and whether the suit is hit by Section 304(2) of Karnataka Zilla Parishad Act. The lower appellate Court has committed an error in framing one issue and must judge upon whether all the issues involved between the parties which have been framed by the trial Court and nothing is discussed in the first appellate Court and the first appellate Court being the Statutory appellate Court ought to have considered the question of fact and question of law and failed to exercise the powers under Order 41 Rule 31 of Code of Civil Procedure. The lower appellate court has failed to discharge its duties as a Court of first appeal and also failed to consider the document at Exs.P1 to P3 and oral evidence of P.W.1 to P.W.4 and only - 13 - RSA No. 419 of 2010 repeated the judgment of the trial Court in the appeal. None of the documents were considered and discussed by the appellate Court. It is contented that the Courts below have wrongly held that plaintiffs has pleaded adverse possession and therefore, the plaintiffs has no title and it amounts to admission of the title of the defendants and it is contented that plea of adverse possession is raised as alternative plea. The defendants are to establish in the acquisition of property and they continued in ownership and possession openly throughout the statutory period. 10. The counsel also vehemently contended that when the issue was framed based on the contention of defendant Nos.4 and 5 that suit is hit by Section 304(2) of the Karnataka Zilla Parishad Act and ought to have been considered the same by the first appellate Court but not considered the same. The counsel also vehemently contended that the plea taken in the written statement of defendant No.3 is that an extent of 9 acres of schedule land was acquired by the government for construction of houses during 1938-39 and also property was handed over to the Government. To that effect, nothing is placed on record except the pleading and not produced any - 14 - RSA No. 419 of 2010 document having acquired the property by the government. No such Notification under Section 4 and 6 of the Land Acquisition Act was issued and no mahazar is produced to show that possession of the land was taken to government and so also possession was handed over to the Village Panchayath. The Counsel would also vehemently contend that under what provision of law the land was acquired is not even recorded and whether it was acquired by the State Government or whether it was acquired by the Central Government and what purpose is also not stated therein and only it relies upon revenue records which have been manipulated documents. The Courts below have totally misunderstood the entries in Ex. P18. Ex.P18 only shows that 9 acres of land is ordered to be converted for non-agriculture purposes. Door number are 340/38-39 is forged and nothing establishes the same. Ex.P18 on the other hand shows that plaintiff is the owner of the suit schedule property and it is an ancestral property. Ex.P19 is the index of land shows that the plaintiff is the owner of entire 17 acres in Sy.No.217 and mode of acquisition is shown as ancestral property. The acquisition of 9 acres is not noted, but doubtfully shown - 15 - RSA No. 419 of 2010 without referring to any acquisition by way of any Notification or any Government order. The Court below have failed to note that Ex.P12, the mutation register showing No.LAQ SR:21/88-89 dated 25.11.1988. It has been filed without any basis. The same was recorded in the year 1988 that the land was acquired. And such entry was made without any notice to the plaintiffs. In the written statement, defendant Nos.1 to 3 have admitted that no notice was issued to the plaintiffs. The mutation entry Ex.P12 goes contra to the plea of defendant Nos. 1 to 3 that in the year 1938-39, the land was acquired. 11. It is further contended that Ex.P15 i.e, the record of rights entries for the year 1985-1986 to 1987- 1988, Ex.P16 -RTC entries for the year 1980-81 to 1984- 85, Ex.P17- the records of rights entries for the year 1985-86 to 1988-89 constantly shows that plaintiffs is the owner of the land in Sy.No.217 measuring 17 acres. Patta is also shown as private ownership land. Tax paid receipt has also produced as Ex.P14 and also patta book. The legal notice was also issued by the plaintiffs as per Ex.P1 and the same was served by the defendants as per Exs.P2 to P11. It is contented that the Courts below ought to - 16 - RSA No. 419 of 2010 have held that plaintiff has proved his actual possession having regard to the entries in Exs.P15 to P20. And also there is a presumption under Section 133 of the Karnataka Land Revenue Act. The report of the Commissioner at Ex.P30 and Ex.P31 clearly establishes the possession and enjoyment of the plaintiffs. However, the Court's below have discarded the report of the Commissioner at Ex.P32 on the ground that the Commissioner has not reported that the plaintiffs is in possession of the suit property and no such direction was given to submit regarding the possession. In the report also, it is stated by the villagers that western portion is cultivated by the plaintiffs and there are signs of land being divided into sites. The Courts below has failed to note that plaintiff has prayed for declaration of his title. On a title being declared, the revenue authorities are bound to change the entry as per the declaration of civil court by virtue of Section 135 of Karnataka Land Revenue Act. 12. Having considered the grounds which have been urged, this Court while admitting the second appeal - 17 - RSA No. 419 of 2010 on 10.02.2021, has framed the following substantial question of law: (i) Whether the suit filed by the plaintiffs is covered under the proviso to Section 135 of the Karnataka Land Revenue Act? If so, whether the judgment and decree passed by the Courts below based exclusively on the revenue entries could be sustained in law and in facts of the case? 13. The counsel has reiterated the grounds urged in the appeal memo during his oral submission before the Court. The counsel also vehemently contented that Sy.No. 217 to the extent of 17 acres is an ancestral property of the plaintiffs. It is the specific case of the plaintiffs that at the instance of defendant No.5, a mutation was came into existence in the year 1988 stating that property is acquired by the Government. Further, it is contended that the suit is filed for the relief of declaration and permanent injunction and before filing the suit, notice was given in terms of Ex.P1 against the government and no reply was given. Though filed the written statement but not entered witness box by any of the defendant Nos. 1 to 5 and regarding acquisition is not substantiated. The only claim is based on the mutation that the suit is not maintainable. The counsel would vehemently contended - 18 - RSA No. 419 of 2010 that Exs.P15 to P20 are the relevant documents and also Ex.P19 clearly discloses that it is an ancestral property and index of land clearly discloses the same. 14. The counsel in support of his argument relies upon the judgment of the Apex Court in the case of Vidyadhar Vs. Mankikrao reported in 1999 AIR(SC),1441, in paragraph No.16, the discussion was made that where a party to the suit does not appear in the witness box and states his own case on oath and does not offer himself to be cross examined by the other side, a presumption would arise that case set up by him is not correct as has been held in a series of decisions passed by the various Courts and Privy councils, beginning from the decision in Sardar Gurbaksha Singh V. Gurdial Singh reported in AIR 1927 PC 230. This was followed throughout by different Courts, i.e. the High Courts and also the Apex Court. 15. The counsel also in his argument relies upon judgment in the case of Sri Bhimeshwara Swami Varu Temple vs. Pedapudi Krishna Murthi and Others, reported in 1973 AIR (SC)1299 and brought to the - 19 - RSA No. 419 of 2010 notice of this Court paragraph No.5 wherein the discussion was made that name of the appellant is recorded as a ryot” in 3 entries in the revenue account and Exhibits which have been marked almost the entire revenue record is in favour of the appellants. The long course of entries which were consistently in favour of the Archakas cannot be ignored in preference to the entries in favour of the temple for a solitary year. 16. The counsel also relied upon the judgment in the case of Sadashlvalah Vs. State of Karnataka reported in 2003 Supreme (Kar) 715 and referring to paragraph No.30 in his argument that the land acquisition officer has declined to pass the award and yet another ground that the land involved in the WP Nos.7540 and 9155-9204/2001 is a kharab land and therefore, it does not belongs to the petitioners. In this regard, it is necessary to know what a kharab land is and what are the rights which flow. Kharab land is so called because it is not a cultivable and is classification made for purposes of revenue exemption. Kharab land is also capable of ownership and cannot be regarded as an adjunct to cultivate land which gets transferred along with the - 20 - RSA No. 419 of 2010 cultivable land. Only for the purpose of assessment, the uncultivable portion of the land or phut kharab portion of the land is excluded from consideration on the ground that it is uncultivable. But it does not cease to belong to the owner of the survey number. And the expression ‘phut kharab’ is also explained in the Gupte’s book on the Bombay Land Revenue Code. The pot kharab is meant barren or uncultivable land included in an assessed survey number and includes any land comprised in a survey number and also the same may be classified as Kharab A unfit for agriculture at the time of survey including the farm buildings and threshing flours of the holder; B, that which is not assessed because, (i)it is reserved or assigned for public purposes. (ii) it is occupied by a road or recognized footpath or by a tank or stream used by persons other than the holders for irrigation, for drinking or domestic purposes, and (iii) also used as burial ground or cremation ground. (iv)The same is assigned for villager potteries. 17. The counsel also relies upon the judgment of the Apex Court in the case of Vidya Devi v. State of Himachal Pradesh and Ors. reported in AIR 2020 - 21 - RSA No. 419 of 2010 Supreme Court 4709 brought to notice of this Court paragraph Nos. 10.3, 10.4 and 10.6 wherein it is also held that appellant could not have been forcibly dispossessed of her property without any legal sanction and without following due process of law, and depriving her payment of just compensation, among being a fundamental right on the date of forcible dispossession. The contention of the State that the appellant or her predecessors had “orally” consented to the acquisition is completely baseless. We find complete lack of authority and legal sanction in compulsively divesting the appellant of her property by the State. But also an observation is made that we are surprised by the plea taken by the State before the High Court, that since it has been in continuous possession of land for about 42 years, it would tantamount to “adverse” possession. The State being a welfare State cannot be permitted to take the plea of adverse possession which allows a trespasser i.e. a person guilty of a tort, or even a crime, could gain legal title over such property. The State cannot be permitted to perfect its title over the land by knocking the doctrine of adverse possession or grab the - 22 - RSA No. 419 of 2010 property of its own citizens, as has been done in the present case. 18. The counsel referring these judgments would vehemently contend that these judgments are aptly applicable to the case on hand. Admittedly the property belongs to the plaintiffs and the same is an ancestral property. Though took the specific contention that property was acquired in the year 1938-1939, nothing is placed on record. But surprisingly in 1988, a mutation at Ex.P12 came into existence and the same is baseless and no sanction of either acquisition or payment of compensation to the original owner. As such, both the Courts have committed an error and the substantial question of law invoking Section 135 of the Karnataka Land Revenue Act requires to be exercised for correction of revenue entries and also the Judgment and Decree by the Courts below exclusively on the revenue entries is not sustainable in the eye of law. Hence, it requires reversal of the judgment and decree. 19. Per contra, the counsel appearing for the respondent Nos.1 to 4/State would vehemently contend - 23 - RSA No. 419 of 2010 that the plaintiff has to prove title and possession. Except showing the RTC entries, nothing is placed on record. The counsel would also contend that even Ex.P17 to Ex.P20 discloses that land was acquired by Government and to that effect there may be an entry. It is also contended that suit is barred under Section 161 and there cannot be any civil suit and also the stray entry cannot be considered. The commissioner report also goes against the plaintiffs that plaintiff is not in possession. In the cross-examination, plaintiff admits that there are huts and also it is a government property and is proved. The counsel would submit that when the relief is sought for the declaration it should be within the purview of Section 34 of Specific Relief Act and without claiming the recovery and possession of the suit is not maintainable. Hence, the remedy sought before the Court is not available. It is clear that huts are in existence and evidence of witnesses are contrary to each other. Both the trial court and appellate Court taken note of the material evidence and also the admission on the part of witnesses. Even the trial Court also extracted the admissions on the part of the evidence - 24 - RSA No. 419 of 2010 of plaintiffs as well as witnesses. Therefore, it does not require any interference. 20. In reply to his argument, counsel for the appellants would contend that to substantiate Ex.P12 there is no any Notification or any payment. The documents are very clear that property is ancestral property of the plaintiffs and RTCs’ even prior to the changing of revenue entries from 1980 onwards till the changing of entry as per Ex.P12, property stands in the name of the plaintiffs till 1988, no entries are made. Even while changing the mutation also no notice was given to the plaintiffs and it is very clear that plaintiffs claims total extent of 17 acres and index of land also clearly discloses the ownership and hence the contention of learned AGA that plaintiffs fails to prove the title cannot be accepted. 21. Having heard the respective counsel, it is the specific claim of the plaintiffs that plaintiff is the owner of the suit schedule property to the extent of 17 acres as clearly described in the plaint. The prayer is also very clear that declaring the plaintiff is the owner and in possession and enjoyment of the suit schedule land as - 25 - RSA No. 419 of 2010 against defendant Nos.1 to 3 and also prayed to decree against defendant Nos.1 to 3 to cancel the entry in mutation in M.R.No.29/88-89 passed by the third defendant in LAC SR. 21/88-89 dated 25.11.1988 and also grant the relief of permanent injunction. Having taken note of the plaint averments, it is very clear that suit schedule property is an ancestral property of the plaintiffs and it has been allotted to the share of the plaintiffs in the partition dated 12.01.1989 and no doubt, in order to establish that property was allotted to the plaintiffs in terms of the partition is not established by placing any document before the Court. It is the specific case that father of the plaintiffs has built a residential farmhouse in the eastern portion of the suit land and he has also located cattle shed, sheep, pens and orally permitted the Muslim persons, three Muslim persons and one Chillekyataha families to put up temporary huts on the northern portion of the suit land since 10 years and hence it is very specific that they have given the permissive permission and the same is also evident from the report of the commissioner. The commissioner also says that there were some huts in the land. But the observation made by - 26 - RSA No. 419 of 2010 the trial Court that plaintiffs is not in possession cannot be accepted and report is also very clear that plaintiffs is cultivating the land and some villages of surrounding area also spoke on the same. And hence the very approach of the trial Court that the Commissioner's report is not supporting the claim of the plaintiffs cannot be accepted. The specific case of the plaintiffs that at the instance of the defendant No.5 only, these entries are made. That is after he became the Pradhan of the Mandal Panchayath, who is having ill-will and party position in the village and he started to harass the plaintiff. When the claim was made in the year 1988, within a year, that property belongs to the defendants, then the plaintiffs went and verified the records and came to know that a false entry has been made. It is specific case that instead of 26 guntas, an entry is made to the extent of 5 acres 27 guntas that it is a kharab land and that claim was made without any basis and though it is contended that land was acquired in the year 1938-1939, there were no any proceedings of acquisition or any payment of compensation to the plaintiffs. When the claim was made that 9 acres of land was acquired, But specific contention - 27 - RSA No. 419 of 2010 was taken in the plaint that the plaintiffs have perfected their title which is a portion of scheduled land by being in continuous and uninterrupted possession and counsel would also vehemently contend that the said plea is only an alternative plea made with regard to the when the claim was made to the extent of 9 acres land was acquired. 22. It has to be noted that Ex.P19 is the index of land which clearly discloses that property stands in the name of the plaintiffs and subsequently entries are made in Ex.P19 also that 9 acres was acquired. But this document clearly discloses that nature of the property is an ancestral property belongs to Palaiah, S/o. Sannaiah. The same is also to the extent of 17 acres of land including the kharab and the same is a kushki land. But in this document, karab is shown as only 26 guntas as contended by the plaintiffs. The total extent is mentioned as 16 acres and 14 guntas and subsequently, it is mentioned as 5 acres and 27 guntas as kharab and remaining lands are cultivated by plaintiffs. But claim made by the government is that 9 acres land was acquired. The total extent is very clear that it was 17 - 28 - RSA No. 419 of 2010 acres of land. It has to be noted that no doubt there is an entry of 9 acres was acquired. Ex.P12 discloses that a mutation came into existence on 25.11.1988. As rightly pointed out by the counsel appearing for the plaintiffs that was made in the year 1988 referring to LAC.SR 21.5.1988 and there was no such proceedings was taken place and no notice was issued to the plaintiffs as contended by the plaintiffs. It has to be noted that when the plaintiff has admitted that property belongs to the plaintiffs and also defendant Nos.3 and 5 also contend that plaintiffs are in possession only in the remaining extent of the land in the written statement. Hence, it is clear that property belongs to the plaintiffs only. Ex.P15 to P20 clearly discloses it is an ancestral property in column number 10 and also in column number 9 shown the name of Palaiah S/o. Palaiah @ Sannaiah and even in cultivation column in column number 11 also shown as Palaiah is cultivating the land. These documents of Exs.P16 and P17, even prior to the making of entry in terms of Ex.P12, from 1980 onwards till 1988, that in column number 9, 10, 11, the name of the plaintiffs is shown and even Ex.P18, it is very clear that the extent of land is 17 acres and kharab is shown as - 29 - RSA No. 419 of 2010 5 acres only and the same is shown as the ancestral property. When the claim of the plaintiffs is that it is an ancestral property and the same belongs to plaintiffs. There is no any documentary evidence is placed before the Court by the defendants claiming that this property was acquired. In one breath, they claims that it was acquired in the year 1938, the same is not substantiated by any documentary proof. Apart from that when the document of Ex.P12 came into existence in the year 1988 and the same is not based on any document with proof of any acquisition, it is also important to note that when the defendant files the written statement by contending that they acquired portion, but did not enter into the witness box to substantiate the same. As such, the judgment relied upon by the Apex Court referred in Vidhyadhar’s case (supra) is very clear that person who pleads must enter into the witness box and withstand the pleadings and the same is not done and hence the said judgment is aptly applicable to the case on hand the claim that property acquired is not established. 23. Having considered the document at Ex. P18, it is very clear that the suit schedule property is an ancestral - 30 - RSA No. 419 of 2010 property of Palaiah, S/o. Palaih @ Sannaiah, and these plaintiffs are legal heirs of the plaintiff on account of death of original plaintiff. It is also the specific case of the plaintiff that this property is neither acquired by the government nor paid any compensation and to that effect also not placed any material and even not stepped into witness box. The trial Court has erroneously answered Issue Nos. 1 to 3 in negative and even defendant No.3 has not followed the procedure as contemplated under the Provisions of Karnataka Land Revenue Act, 1964. When the compensation is not paid to the plaintiff or to his ancestors or to his predecessors and no possession was taken by the government in accordance with law by acquisition, the trial Court ought not to have answered Issue Nos. 4 to 5 as negative and no doubt the plaintiff has contended that He is in continuous uninterrupted adverse possession. But the claim was made that when portion of the property to the extent of 9 acres was acquired, but no such acquisition proceedings or final notification Is produced as rightly pointed out by the counsel. - 31 - RSA No. 419 of 2010 24. The trial Court fails to take note of the very pleading of the plaintiff that the suit schedule property is an ancestral property of himself having allotted to his share on partition between the plaintiff and his cousins. That took place on 12.01.1989. Further, the plaintiff has also taken another contention that he has perfected his title to the alleged 9 acres of land which is the suit schedule land by way of continuous uninterrupted adverse peaceful possession as alternatively pleaded in view of claim of Government but acquisition not established. 25. It is the contention of the plaintiff that he is in actual possession and enjoyment over the suit schedule property and defendants causing obstruction and in view of obstruction by the defendants the plaintiff has filed a suit for relief of permanent injunction. What made the defendants to interfere with the possession of the property and also got the mutation entry bearing number mutation in MR No. 29/88-89 passed by defendant No.3 in LAC.CR 21/88-89 dated 25.07.1988 and no proceedings was taken place and even no revenue entry is effected as the basis of acquisition. - 32 - RSA No. 419 of 2010 26. The trial Court also answers other issues and comes to the conclusion that the suit is not maintainable in view of Karnataka Land Revenue Act and the approach is very erroneous and even defendants have admitted that plaintiff is in peaceful possession over the suit schedule property and the commissioner report also shows the same and also comes to the conclusion that there is no procedure established in the eye of law either for acquiring or for disposition of plaintiffs from the suit schedule property except the revenue entries and no supporting documents of taking of possession by conducting any mahazar. When such being the case, the trial Court ought not to have answered the issues number 11 and 12 in negative. 27. The trial Court also committed an error in answering Issue No. 13. Wherein, the suit is hit by Section 304 of the Karnataka Zilla Parishad Act and the said approach is erroneous and when there is no acquisition or handing over the possession in favour of defendant no. 4 and 5, the question of invoking Section 304(2) does not arise. - 33 - RSA No. 419 of 2010 28. This Court would like to refer to the provisions of Karnataka Land Revenue Act in Section 135, which reads as follows: ”135. Bar of suits. No suit shall lie against the State Government or any officer of the State Government in respect of a claim to have an entry made in any record or register that is maintained under this Chapter or to have any such entry omitted or amended, provided that If any person is aggrieved as to any right of which he is in possession, by an entry made in any record or register maintained under this Chapter, he may institute a suit against any person denying or interested to deny his title to such right for a declaration of his right under Chapter VI of the Specific Relief Act, 1877, and the entry in the record or register shall be amended in accordance with any such declaration.” 29. Having perused the proviso of Section 135 of the Karnataka Land Revenue Act and there is bar for filing of suit that no suit shall lie against the State Government or any officer of the State Government in respect of a claim to have an entry made in any record or register that is maintained or any such entry omitted or amended provided that if any person is aggrieved as to any right of which he is in possession, by an entry made in any record or register maintained, he may institute suit against any person denying or interested to deny is title to such right for a declaration of his right. Hence, - 34 - RSA No. 419 of 2010 proviso is very clear that the plaintiff can seek the relief of declaration with regard to particular entry. 30. This Court would like to rely upon the judgment of the Full Bench of this Court dated 24.01.2020 in the case of Jayamma vs. State passed in Writ Petition No.6872/2013, wherein while invoking Section 135 of Karnataka Land Revenue Act, has held that a party can approach the Civil Court by filing a suit against any person denying or interested to deny his title for the relief of declaration of his right, to establish his private right and any declaration made by the competent Civil Court will be binding on the private parties as well as authorities concerned, who pass the orders under Section 136(2) and (3) of the Karnataka Land Revenue Act. It is well settled that any adverse finding recorded either by the Assistant Commissioner or Deputy Commissioner with regard to record of rights in respect private parties or any entries exercising their power under the provisions of Section 136, it shall not be binding on the Civil Court as well as any decision made by the authorities under the Land Revenue Act. The authorities have no right to decide the title but only the Civil Court can declare the entries made are - 35 - RSA No. 419 of 2010 not with competent authorities even if any mistake is made, the same can be corrected by the Civil Court. 31. This Court would also like to rely upon the judgment of the Division Bench of Apex Court in the case of Althaf Ahmed vs. State of Karnataka, Revenue Department and Others passed in WA No.713/2013 dated 11.03.2024,, wherein while invoking Section 135 of the Karnataka Land Revenue Act, held that any entry made in the record of right or register maintained by the Revenue Authorities in respect of any right over immovable property with subject to declaration which may be given by the Civil Court. Though proviso contemplates that if any person is aggrieved as to any right of which he is in possession, by an entry made in any of the record or register maintained, he may institute a suit against any person who denies or is interested to deny his title to such right, for declaration of his right. The entry in the record or in the register shall be amended in accordance with such declaration which may be given by the Civil Court. 32. This Court would also like to rely upon the judgment rendered in the case of Dundappa vs. Smt. Sundrawwa and Another reported in ILR 2017 KAR 4105 while invoking - 36 - RSA No. 419 of 2010 Section 135 of the Karnataka Land Revenue Act, held that proviso to Section 135 enables the person who is aggrieved as to any right of which he is in possession by an entry made in any record or register maintained by the Revenue Authorities under Chapter 11 of the Act, can institute a suit against any person denying or interested to deny his title, for the relief of declaration of his right. Therefore, the suit of the plaintiff before the Court below was maintainable. 33. The relief is sought in respect of entries made in the revenue record, particularly Ex.P12 and also in Ex.P19, i.e. index of land, and having perused the index of land also, it is very clear that the suit schedule property is an ancestral property and no basis to make an entry in the index of land that belongs to Government and no acquisition at all and also the entry is not in consonance with any acquisition in accordance with law. The judgment relied upon by the counsel for the appellant in AIR 1973 (supra) particularly in paragraph No.5, in Bhimeshwara Swami’s case, it is also very clear that the documents for a long period stands in the name of family of plaintiff and in favour of the appellants herein and the same cannot be ignored. The judgment of the Apex Court in - 37 - RSA No. 419 of 2010 1999 AIR SCC 1441 in Vidyadhar’s case is also very clear particularly in paragraph 16 that claim is not substantiated by entering the witness box and also the judgment of the Apex Court in 2003 KAR 715 particularly in paragraph No.30, that no acquisition and not made any payment of compensation. This Court while dealing with the matter held that the kharab land is concerned that belongs to owner if it is not cultivable and there is no dispute with regard to kharab land is ‘A’ kharab-stone found. But it is the specific case of the plaintiff that the kharab land is 26 guntas but later on, made as 5 acres and 27 guntas and the same is also at the instance of defendant nos. 4 and 5 and no basis. But even if it is to the extent of 5 acres 27 guntas and even same is vested with the owner of the property as the same is ‘A’ kharab and there cannot be any issue to that effect and the same has dealt with in paragraph Nos.30 and 31 of the judgment referred supra and the same is applicable to the case on hand. 34. The counsel also relies upon the judgment of the Apex Court in the case of Vidya Devi v. State of Himachal Pradesh and Ors. reported in AIR 2020 - 38 - RSA No. 419 of 2010 Supreme Court 4709, brought to notice of this Court paragraph Nos. 10.3, 10.4 and 10.6 wherein it is also held that appellant could not have been forcibly dispossessed of her property without any legal sanction and without following due process of law, and depriving her payment of just compensation, among being a fundamental right on the date of forcible dispossession. 35. It is noted that the trial Court has framed 16 issues with regard to all the issues between the parties and answers the same in a perverse manner and appellate Court has committed an error and fails to take note of the powers of the first appellate court under Order 41 Rule 31 of Code of Civil Procedure, being first appellate Court as statutory appellate Court to consider the question of fact and question of law and the same was not done and in an ingenious method framed point of consideration only whether the trial Court judgment is erroneous and it requires interference and while answering the said point for consideration of the trial, it is nothing but replica of the judgment of the trial Court. - 39 - RSA No. 419 of 2010 36. The suit was numbered as O.S.No.29/1990 on the file of Principal Munsiff Court, Chitradurga and later it was transferred to Civil Judge Junior Division, Challakere and re-numbered as OS No.147/1994 and later numbered as O.S.No.201/2001 and the plaintiff has approached the Court almost 36 years ago and no point in remanding the matter to the appellate Court to exercise power under Order 41 Rule 31 of CPC as this Court dealt with all issues and having reassessed the material on record with regard to material on record, it is appropriate to answer the substantial question of law framed by this Court that the suit is covered in the light of Section 135 of the Karnataka Land Revenue Act, that there was an entry without any basis, if any property was taken by the State, without due process of law and hence, the plaintiff can seek a relief for declaration and the same is sought as there is no any acquisition but entries made in the revenue records and both the Courts dealt with only exclusively as the revenue entries and the same is not sustainable in law and in facts of the case. Hence, I answer the substantial question of law accordingly that revenue entries are made without any basis and judgment of both the Courts with regard to - 40 - RSA No. 419 of 2010 acquisition is not substantiated in the eye of law. Hence, I answer the substantial question of law accordingly. 36. In view of the discussions made above, I proceed to pass the following: ORDER a. The regular second appeal is allowed. b. The impugned judgment of the trial Court passed in O.S.No.201/2001 and the Appellate Court passed in RA No.104/2007 are set aside. Consequently, the suit of the plaintiff is decreed. c. The plaintiff is declared as the owner and in possession and enjoyment over the suit land. The entry made by defendant Nos.1 to 3 in mutation No.21/1988-1989 passed by the third defendant in the year 1988-1989 is set aside and cancelled. Consequently, permanent injunction is granted in favour of the plaintiff. d. Draw decree accordingly. Sd/- (H.P.SANDESH) JUDGE SSD