- 1 - HC-KAR NC: 2025:KHC-D:7762 RSA No. 5423 of 2009 IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH DATED THIS THE 18TH DAY OF JUNE 2025 BEFORE THE HON'BLE MR. JUSTICE M.G.S. KAMAL REGULAR SECOND APPEAL NO.5423 OF 2009 (DEC) BETWEEN: 1. TIMMAYYA SHIVARAM HEGDE, AGE ABOUT:59 YEARS. 2. PRABHAKAR SHIVARAM HEGDE AGE: 52 YEARS. 3. MANKALI W/O. SHIVARAM HEGDE, AGE:85 YEARS. RES NOS. 1 TO 3 ARE R/O: KULVE, KENCHAGADDE, TQ: SIRSE, DIST: U.K., 4. SARASWATI W/O. GAJANAN HEGDE, AGED ABOUT:62 YEARS, R/O HOLEBAILPUR, TQ:SIRSI, DIST: U.K. 5. NETRAVATI W/O. MADHUKAR DIXIT, AGE:45 YEARS, R/O: RATHABEEDI IN BANAVASI, TQ: SIRSI, DIST: U.K. 6. LEELAVATI RAMACHANDRA HEGDE, AGE:80 YEARS, R/O:KULVE, KENCHAGADDI, TQ:SIRSI, DIST: U.K. 7. M. RAMACHANDRA HEGDE, AGE:64 YEARS, GULLEJADDI, TQ: SIDDAPUR, DIST: U.K. 8. CHANDRASHEKAR RAMACHANDRA HEGDE, AGE: 59 YEARS, GULLEJADDI, TQ:SIDDAPUR, DIST: U.K. Digitally signed by SAROJA HANGARAKI Location: High Court of Karnataka, Dharwad Bench, Dharwad - 2 - HC-KAR NC: 2025:KHC-D:7762 RSA No. 5423 of 2009 9. MALLESHWAR RAMACHANDRA HEGDE, AGE:42 YEARS, R/O, KULVE, KENCHAGADDE, TQ:SIRSI, DIST: U.K. 10. SAROJINI RAMACHANDRA HEGDE, AGE:55 YEARS, R/O: HERUR, TQ:SIDDAPUR, DIST: U.K. 11. VISHWANATH LAXMINARAYANA HEGDE, AGE:52 YEARS. 12. NARASHIMA LAXMINARAYAN HEGDE, SINCE DECEASED BY HIS LRS. 12A. VINAYAK NARASHIMA HEGDE, AGE: 33 YEARS, R/O: KULVE, KENCHAGADDE, TQ: SIRSI, DIST: U.K. – 581 401. 12B. RANJITA D/O. NARASHIMA HEGDE W/O. RAVI NAIK, AGE: 36 YEARS, R/O: KULVE, KENCHAGADDE, TQ: SIRSI, DIST: U.K. – 581 401. 13. MANJUNATH LAXMINARAYAN HEGDE, AGE:48 YEARS. 14. NAGESH LAXMINARAYAN HEGDE, AGE:46 YEARS. 15. SHASHIKALA W/O. SHRIDHAR HEGDE, AGE:38 YEARS, R/O: ALAWADA, MANCHKERI, TQ: YELLAPUR, DIST: U.K. 16. DATTATRAYA VENKATRAMAN HEGDE, AGE:65 YEARS, R/O: ALAWADA, MANCHKERI, TQ: YELLAPUR, DIST: U.K. 17. GAJANAN @ GANAPATI VENKATRAMAN HEGDE, - 3 - HC-KAR NC: 2025:KHC-D:7762 RSA No. 5423 of 2009 AGE:60 YEARS, R/A ALAWADA, MANCHKERI, TQ:YELLAPUR, DIST: U.K. …APPELLANTS [BY SRI. S.V.YAJI, ADVOCATE FOR 12(A) AND (B)] AND: 1. GANAPATI MANJAYYA HEGDE, SINCE DECEASED BY HIS LRS. 1A. SADANAND GANAPATI HEGDE, AGE: 40 YEARS, OCC: AGRICULTURIST, R/O: KULVE, KENCHAGADDE, TQ: SIRIS, DIST: UTTAR KANNADA – 581 401. 1B. SMT. YASHODA GANAPATI HEGDE, AGE: 70 YEAS, OCC: HOUSEHOLD, R/O: KULVE, KENCHAGADDE, TQ: SIRIS, DIST: UTTAR KANNADA – 581 401. 2. HEMAVATI SUBRAY HEGDE, AGE:40 YEARS, KEPPEKERE IN HONAVAR TALUK, U.K.DISTRICT. 3. BHAGIRATI SHANKARANARAYAN HEBBAR, AGE:37 YEARS, NAGOOR, TQ: KUNDAPUR, UDUPI DISTRICT. 4. SMT. K. NARAYANA ADIGA, AGE:33 YEARS, R/O: KUMBASHI, TQ:KUNDAPUR, UDUPI DISTRICT. …RESPONDENTS (BY SRI. A.P.HEGDE, ADVOCATE FOR SRI. VISHWANT HEGDE, ADVOCATE FOR R1(A); V/O DATED: 16.04.2021 APPEAL AGAINST R1 IS ABATED; R2 TO R4, R1(B) ARE SERVED) THIS REGULA SECOND APPEAL IS FILED UNDER SECTION 100 OF CPC PRAYING TO SET ASIDE THE IMPUGNED JUDGMENT AND DECREE DATED 08.06.2009 PASSED BY THE CIVIL JUDGE(SR.DN), SIRSI IN R.A.NO.44/1984, CONFIRMING THE JUDGMENT AND DECREE DATED 27.08.1984 PASSED BY THE PRL. MUNSIFF SIRSI, IN - 4 - HC-KAR NC: 2025:KHC-D:7762 RSA No. 5423 of 2009 O.S.NO.41/1980 AND THE SUIT FILED BY THE PLAINTIFF MAY BE DISMISSED, IN THE INTEREST OF JUSTICE AND EQUITY. THIS APPEAL, COMING ON FOR FINAL HEARING, THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER: ORAL JUDGMENT (PER: THE HON'BLE MR. JUSTICE M.G.S. KAMAL) 1. This appeal is by the defendant No.1 aggrieved by the judgment and decree dated 27.08.1984 passed in OS No.41/1980 on the file of the Court of Principal Munsiff, Sirsi (for short, ‘Trial Court’), by which the Trial Court while decreeing the said suit declared that the plaintiff has right to enjoy the betta privileges in the lands bearing Sy.No.118 total measuring 12 acres 27 guntas and in Sy.No.120/1 measuring 9 acres 27 guntas excluding an area of 10 guntas in which the house of the defendants is situated and consequently, restrained the defendants permanently from interfering with privileges to be enjoyed by the plaintiff in respect of the said land making it further clear that, the defendants are not restrained from enjoying their house situated in Sy.No.120/1 as well as the way which is existing thereon to reach their house. The said - 5 - HC-KAR NC: 2025:KHC-D:7762 RSA No. 5423 of 2009 judgment and decree is confirmed by the judgement and order dated 08.06.2009 passed in RA No.44/1984 on the file of Civil Judge (Sr.Dn.), Sirsi (for short, ‘First Appellate Court’). 2. Brief facts of the case are that, the plaintiff and defendants are relatives and they are the owners in cultivation of their garden lands forming part of Sy.Nos.91, 102, 105, 107, 111, 114 and 115 belonging to the plaintiff and Sy.Nos.92, 101, 106, 108, 110 and 113 belonging to defendants respectively. That the land in Sy.Nos.118 and 120 are the betta lands belonging the Government and the plaintiff and the defendants are having privilege to enjoy the benefits from the said land in Sy.Nos.118 and 120 as provided under the Karnataka Forest Manual. 3. It is the further case of the plaintiff that, the land measuring 9 acres 27 guntas forming part of larger extent of land in Sy.No.120 was assigned with Sub Sy.No.120/1 and the same is in exclusive possession and enjoyment of the plaintiff. Similarly, land measuring 2 acres 27 guntas in Sy.No.118 is also in the exclusive - 6 - HC-KAR NC: 2025:KHC-D:7762 RSA No. 5423 of 2009 possession and enjoyment of the plaintiff. It is alleged that the defendants without having any right over the said portions of the land were interfering with the possession and enjoyment of the plaintiff, constraining him to file the present suit. 4. Case of the defendants is that there has been no division of land in Sy.No.120 and total extent of the said land is 29 acres 1 gunta. That the said land as well as land in Sy.No.118 are in joint possession and enjoyment of the plaintiff and defendants. 5. Based on the pleadings, the Trial Court framed the following issues for its consideration: 1. Whether the plaintiff proves that pot - hissas were effected in Sy.No.120 as Sy.No.120/1 and 120/2? 2. Whether the plaintiff proves that he is in vahiwat and enjoyment of the portion of Sy.No.120/1 excluding 10 guthas in possession of defts. shown by the letter ‘ABCD’ in the hand sketch? 3. Whether the plaintiff proves the alleged obstruction? 4. What order or decree? - 7 - HC-KAR NC: 2025:KHC-D:7762 RSA No. 5423 of 2009 6. Plaintiff examined himself as PW1 and exhibited 13 documents marked as Ex.P1 to P13. While two witnesses have been examined on behalf of defendants as DW1 and DW2 and exhibited 9 documents as Ex.D1 to D9 and on appreciation of the evidence, the Trial Court held that there was a division of land in Sy.No.120 into Sy.No.120/1 in which 9 acres 27 guntas of land was exclusively enjoyed and processed by the plaintiff and accordingly, decreed the suit as noted herein above. Being aggrieved by the same, the defendants preferred regular appeal in RA No.44/1984. The First Appellate Court framed the following points for its consideration: 1. Whether the appellant made out that there are reasons to interfere in the judgment and decree under appeal? 2. Whether the plaintiff appellant proved the creation of pot hissas 120/1 and he is in actual possession and enjoyment of the same excluding the defendants house marked as ABDC area? 3. What order? 7. On re-appreciation of the matter, the First Appellate Court dismissed the appeal confirming the - 8 - HC-KAR NC: 2025:KHC-D:7762 RSA No. 5423 of 2009 judgment and decree passed by the Trial Court. Being aggrieved by the same, the appellant is before this Court. 8. This Court vide order dated 19.09.2013 admitted the appeal for consideration of the following substantial question of law: Whether both the Courts below have rightly appreciated the evidence available on record to hold that plaintiff has produced documents to show division of Sy.No.120 of Kulve village, Sirsi taluk into Sy.Nos.120/1 and 120/2 and thereby dividing privileges of Betta land bearing Sy.No.118 between the two hissas of Sy.No.120? 9. Along with the this appeal an application has filed by the appellants in I.A.No.1/2017 under Order 41 Rule 27 read with Section 151 of CPC seeking production of following documents: 1. Copy of RTC extracts 2. Copy of mutation registers extract 3. Copy of revision settlement akar bandh 10. Learned counsel for the appellants has also filed another document namely order dated 12.03.2015 passed by the Assistant Commissioner, Sirsi Sub-Division. - 9 - HC-KAR NC: 2025:KHC-D:7762 RSA No. 5423 of 2009 Referring to the aforesaid documents, the learned counsel for the appellants submits that though the Trial Court and the First Appellate Court based on the documents produced by the plaintiff namely RTC extract have come to the conclusion of there being a division of land in Sy.No.120 into Sy.No.120/1, the documents now sought to be produced would categorically indicate the revenue authorities themselves have found that there has been no division of the betta land in Sy.No.120 in the manner known to law and as such, the records have been rectified amalgamating the said land as it existed originally. He further submits that in the light of this subsequent developments which have taken place during the pendency of the present appeal, the judgement and decree passed the Trial Court and confirmed by the First Appellate Court holding plaintiff having exclusive privilege to enjoy the suit properties and issuance of consequential relief of injunction have to be set aside. - 10 - HC-KAR NC: 2025:KHC-D:7762 RSA No. 5423 of 2009 10.1. He further submits that in the alternate, parties may be relegated to the appropriate authorities to have the issue resolved in view of the changed circumstances inasmuch as, even under the provisions of Karnataka Forest Manual, it is only the revenue authorities who are competent to cause division of the privileged land. Hence, seeks for allowing of the appeal. 11. Per contra, Sri. A.P. Hegde, learned counsel appearing for the respondents submits that the Trial Court and the First Appellate Court have decreed the suit as sought for based on the revenue records produced by the plaintiff reflecting their names and division of the land as contended in the plaint. He further submits that the revenue records even to this date reflect the division of survey numbers as contended in the plaint. He however fairly submits that, in the light of the subsequent developments which are brought on record by the appellants by way of filing application in IA No.1/2017, the parties may be relegated to the appropriate authorities for - 11 - HC-KAR NC: 2025:KHC-D:7762 RSA No. 5423 of 2009 resolution of the matter. He, however, insists that till the appropriate authorities take decision in accordance with law the recognition of privilege and the injunction order granted in favour of the plaintiff be directed to be maintained. 12. In response, learned counsel for the appellants submits no objection for the same. 13. Submission of the learned counsel for the parties is taken on record. 14. Adverting to the substantial question of law framed by this Court while admitting the appeal for its consideration, it is to be noted that the Trial Court and the First Appellate Court decreed the suit in favour of the plaintiff as sought for based on the entries in the revenue records existed as on the date of filing of the suit and when the suit was being tried. This aspect of the matter is fortified by very application for production of additional documents now filed by the appellants in which the factum of subsequent orders that have been passed by the revenue authorities purportedly carrying out/rectifying the - 12 - HC-KAR NC: 2025:KHC-D:7762 RSA No. 5423 of 2009 entries has been brought on record. In other words, these subsequent orders would only indicate that the existence of entries with regard to the division of land as shown in the documents produced by the plaintiff before the trial court, which are now sought to be rectified. Therefore, the substantial question of law for the purpose of determination of this appeal have to be answered in the in that the affirmative. Trial Court and the First Appellate Court have rightly appreciated the evidence in the matter and have not committed any error in decreeing the suit based on the said revenue record. 15. Having said that, in the light of the subsequent development in the nature of orders passed by the revenue authorities mentioned in the additional documents now brought on record as referred to above and in the light of submissions made by learned counsel appearing for the appellants as well as the respondents, the present appeal is disposed off with the following observation and directions: - 13 - HC-KAR NC: 2025:KHC-D:7762 RSA No. 5423 of 2009 a) Parties are at liberty to approach the appropriate authorities as contemplated under the Karnataka Forest Manual seeking sub-division of the betta land attached to their respective holdings. b) Till such application to be made by the parties herein, are considered in accordance with law by the appropriate authorities, the decree passed by the Trial Court and confirmed by the First Appellate Court shall prevail and remain in force. c) It is further made clear that the decree passed by the Trial Court and confirmed by the First Appellate Court is subject to the order/s to be passed by the revenue authorities upon the application to be made by the parties as directed herein before the competent authorities. 16. Pending applications, if any, are disposed off accordingly. Sd/- (M.G.S. KAMAL) JUDGE SMM/CT-ASC / List No.: 1 Sl No.: 1