- 1 - NC: 2025:KHC-K:2538 RSA No. 200303 of 2017 IN THE HIGH COURT OF KARNATAKA, KALABURAGI BENCH DATED THIS THE 28TH DAY OF APRIL, 2025 BEFORE THE HON'BLE MR JUSTICE ANANT RAMANATH HEGDE REGULAR SECOND APPEAL NO.200303 OF 2017 (DEC/INJ) BETWEEN: DODDA TAYAPPA S/O DEVAPPA DALWAI, SINCE DECEASED BY HIS LRS. 1) a. LAKSHMANA S/O DODDA TAYAPPA AGE: 30 YEARS, OCC: AGRICULTURE, R/O:58 BLOCK1, LINGASUGUR ROAD, KARIYAPPATATA ROAD, KALAMALA TQ: AND DIST: RAICHUR – 584 136. 2. SANNA TAYAPPA S/O DEVAPPA DALWAI AGE: 56 YEARS, OCC: AGRICULTURE, R/O: KALMALA, TQ & DIST: RAICHUR – 584 136 …APPELLANTS (BY SRI AMEERKUMAR DESHPANDE, SENIOR COUNSEL FOR SRI GANESH S.KALBURGI, ADVOCATE) AND: 1. STATE OF KARNATAKA REPRESENTED BY ITS CHIEF SECRETARY, AMENDED AS PER ORDER DATED 14.12.2020. Digitally signed by BASALINGAPPA SHIVARAJ DHUTTARGAON Location: HIGH COURT OF KARNATAKA - 2 - NC: 2025:KHC-K:2538 RSA No. 200303 of 2017 VIDHANA SOUDHA, BANGALORE – 1. 2. THE DEPUTY COMMISSIONER, RAICHUR – 584 101. 3. THE EXECUTIVE ENGINEER, NO.5 CANAL DIVISION, YERMARUS, TQ & DIST: RAICHUR -584 101. 4. THE ASST. EXECUTIVE ENGINEER, NO.1 CANAL SUB-DIVISION, KALLUR, TQ: MANVI & DIST: RAICHUR -584 123. …RESPONDENTS (BY SRI SANJEEVKUMAR C.PATIL, ADVOCATE FOR R3 AND R4; SMT MAYA T.R., H.C.G.P., FOR R1 AND R2) THIS REGULAR SECOND APPEAL IS FILED UNDER SECTION 100 OF CPC, PRAYING TO SET ASIDE THE JUDGMENT AND DECREE DATED 07.07.2017 PASSED IN R.A.NO.27/2014 ON THE FILE OF THE COURT OF MOTOR ACCIDENTS CLAIMS TRIBUNAL AT RAICHUR, CONFIRMING THE JUDGMENT AND DECREE DATED 29.04.2014 PASSED IN O.S.NO.158/2005 ON THE FILE OF PRINCIPAL SENIOR CIVIL JUDGE AND C.J.M., AND TO PASS ANY OTHER APPROPRIATE ORDERS, IN THE INTEREST OF JUSTICE. THIS REGULAR SECOND APPEAL, COMING ON FOR FURTHER HEARING, THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER: CORAM: HON'BLE MR JUSTICE ANANT RAMANATH HEGDE - 3 - NC: 2025:KHC-K:2538 RSA No. 200303 of 2017 ORAL JUDGMENT (PER: HON'BLE MR JUSTICE ANANT RAMANATH HEGDE) 1. Heard the Senior Counsel appearing for the appellants, learned Government advocate appearing for respondents No.1 to 3 and learned counsel appearing for respondent No.4. 2. With the consent of both sides, the appeal is taken up for final disposal, to consider the following substantial question of law. Whether the trial Court and Appellate Court were justified in dismissing the suit for declaration and injunction though the acquisition of suit property is not established by the defendant State? 3. This appeal arises out of a concurrent finding in a suit for declaration and injunction. The suit property bearing Survey No.79/1/3, measuring 3 acres 18 guntas in Kalmala village, Raichur taluka. The boundaries are shown as under: To the North : Land of Sy. No.78 and 79/2, To the South : Main road and quarters, - 4 - NC: 2025:KHC-K:2538 RSA No. 200303 of 2017 To the East : Land Sy. No.79/1/2, To the West : Road 4. The plaintiffs claim to be the owners of the suit property on the premise that Survey No.79/1 belonged to their ancestors and it measures 6 acres 32 guntas and the record of rights were standing in the name of Mallayya Dalavai. It is stated that, Mallayya Dalavai had two sons i.e. Lachamanna and Tippanna and according to the plaintiffs, 03 acres 16 guntas is allotted to the share of Lachamanna Dalavai and remaining 03 acres 16 guntas is allotted to Tippanna Dalavai in the family settlement. 5. It is further stated that, after the settlement, the properties were divided into three portions i.e. Survey No.79/1/1, measuring 2 acre, Survey No.79/1/2, measuring 1 acre 14 guntas and Survey No.79/1/3, measuring 3 acres 18 guntas. As per the subdivision, the records are changed. 6. The plaintiffs claim that, Tippanna Dalavai had only one son by name Devappa who according to the plaintiffs he is the father of the plaintiff Nos.1 and 2. It is - 5 - NC: 2025:KHC-K:2538 RSA No. 200303 of 2017 also stated that, Lachamanna had no heirs and died issueless. The plaintiffs claim that, they have inherited the entire property measuring 6 acres 32 guntas. Thus plaintiffs claim that they are the joint owners. 7. The suit is filed seeking relief of declaration of ownership on the premise that, without there being any acquisition, the plaintiffs’ ancestors’ names have been removed from the property records and in column No.9 and column No.12, the word ‘grama’ is entered without there being any notice to the ancestors of the plaintiffs. 8. The defendant No.4 filed written statement and rest of the defendants adopted the written statement filed by defendant No.4. The defendants contend that, the plaintiffs are not in possession of the suit property. It is contended that, there are structures belonging to defendant No.4 and defendant No.4 is in possession of the property. It is also contended that the property in question was acquired during the time of Nizam’s dynasty. Hence, the defendants prayed for dismissal of the suit. - 6 - NC: 2025:KHC-K:2538 RSA No. 200303 of 2017 9. The trial Court dismissed the suit, holding that, the plaintiffs have failed to establish their claim. Being aggrieved by the said Judgment and decree, the plaintiffs preferred regular appeal in R.A.No.27/2014. 10. The first appellate Court in the appeal filed by the plaintiffs appointed a Court Commissioner to ascertain the extent of land occupied by the plaintiffs. The Commissioner submitted his report on 26.09.2013 and the same was taken on record. None of the parties to the proceedings filed objections to the report of the Commissioner and have not examined the Court Commissioner. 11. The first appellate Court thereafter remanded the matter to the trial Court with liberty to apply surveying the land. After reman, the trial Court has dismissed the suit. The plaintiffs aggrieved by the dismissal of the suit, again filed appeal before the District Court. The District Court in terms of the impugned Judgment and decree in R.A.No.27/2014 dismissed the appeal, confirming the Judgment and decree passed by the trial Court. - 7 - NC: 2025:KHC-K:2538 RSA No. 200303 of 2017 12. Aggrieved by the aforesaid Judgment and decree, the plaintiffs are before this Court. 13. Leaned Senior Counsel appearing for the appellants submitted that; 14. The property originally belonged to the plaintiffs’ ancestors. The plaintiffs are in possession of the suit property. The fact is that, the plaintiffs are the descendants of Mallayya Dalavai. The defendants on the other hand claimed title over the property based on the alleged land acquisition, which is not established by them. The very fact that, the defendants raised a defence that they have acquired the land from the plaintiffs' ancestors itself would demonstrate that the plaintiffs' ancestors are the owners of the property. This being the position, the trial Court as well as the first appellate Court erred in rejecting the claim of the plaintiffs. 15. In the alternative, it is also submitted that, assuming that the plaintiffs are not able to establish possession over the entire property measuring 3 acres 16 - 8 - NC: 2025:KHC-K:2538 RSA No. 200303 of 2017 guntas, the Court at least ought to have granted a declaration and injunction in respect of the property over which the possession of the defendants is not established. He would refer to the report of the Court Commissioner to contend that, the plaintiffs are in possession of 02 acres 24 guntas of land and defendants are at the most in possession of 27 guntas, out of which 24 guntas are in one place and 03 guntas are in another place indicated in the survey sketch. Since the survey sketch has not been objected to by the defendants, the suit ought to have been at least decreed in part. 16. Learned Government Advocate appearing for the respondents, on the other hand, would contend that the plaintiffs’ title over the property is not established. The relationship is not established, and the very fact that the structure belonging to the defendants is in existence for long time, would establish the fact that the land is entirely acquired and the plaintiffs did not claim any right over the property. - 9 - NC: 2025:KHC-K:2538 RSA No. 200303 of 2017 17. Learned counsel for the respondents No.3 and 4 would submit that the suit is filed in 2004 after Karnataka Neeravari Nigama Limited which is a Corporation which came into existence in the year 1998. It is his further submission that respondents No.3 and 4 is a separate Corporation created under a statute, and there was no effective representation on behalf of respondents No.3 and 4 before the trial Court and when the case was filed the suit properties belonged to the KNNL and the property records were not yet handed over by the Government, as such, defendants No.3 and 4 could not effectively defend the matter. 18. This Court has considered the contentions raised at the Bar. 19. The records prima facie would reveal that suit property was ancestral joint family property of the plaintiffs. However, it is also stated that the property was acquired during the period of Nizam. The existence of structure in the - 10 - NC: 2025:KHC-K:2538 RSA No. 200303 of 2017 suit property is now established in terms of the report from the Survey Commissioner appointed by the Court. 20. Under these circumstances, the Court has to consider as to whether the portion not in possession of the defendants in terms of the report of the Court Commissioner can be declared as the property of the plaintiffs and whether the injunction can be granted. Hence, the matter requires re-consideration. 21. Since the defendant Nos.3 and 4 raised the contention that they could not effectively defend the matter, liberty is granted to both parties to lead evidence and both the parties are permitted to amend the pleadings to incorporate any new grounds. 22. Hence, the following: ORDER i) The appeal is allowed. ii) The impugned judgment and decree dated 07.07.2017 in RA No.27/2014 on the file of Principal District Judge at Raichur and the - 11 - NC: 2025:KHC-K:2538 RSA No. 200303 of 2017 judgment and decree dated 29.04.2014 in O.S No.158/2005 on the file of Principal Senior Civil Judge at Raichur are set aside. iii) The matter is remitted to the trial Court for fresh consideration in accordance with law. iv) The parties shall appear before the trial Court on 16.06.2025 without awaiting any notice from the Court. v) Registry to return the trial Court records to the trial Court. Sd/- (ANANT RAMANATH HEGDE) JUDGE Svh/-/BL List No.: 1 Sl No.: 4