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PETITIONER: SRI KEMPAIAH

       Vs.

RESPONDENT: SMT. CHIKKABORAMMA AND OTHERS

DATE OF JUDGMENT:       16/09/1998

BENCH: S. SAGHIR AHMAD, S.RAJENDRA BABU

ACT:

HEADNOTE:

JUDGMENT:  JUDGMENT Rajendra Babu, J. This   appeal  arises  out  of  certain  proceedings initiated by two rival claimants, namely, the  appellant  on the  one hand and respondents 2 to 4 on the other before the Tehsildar under the Karnataka Village Offices Abolition Act, 1961 (hereinaften referred to as "the Act").   The  Act  was brought into  effect from 1st February, 1963.  The Tehsildan made  an  order  on  22nd   July,   1981   re-granting   the ’Neeraganti’ Inam Lands comprised in survey Nos.  33, 38, 41 and 130  of  yeliyun village and Survey No.  49 of Yerehalli Village in favour of  the  appellant.    Aggrieved  by  that order,  the  respondents  2  to 4 preferred an appeal to the District Judge in respect of  Neeraganti  Inam  lands.    On appeal the learned District Judge allowed the appeal and set aside the  grant  made  in  favour of the appellant.  At the same  time,  the  learned  District  Judge  also  held  that respondents  2  to  4  are  not  descendants of the original barawardar and thus are not holders of village office.    He also  held  that  they did not perform the duties of village office of Neeraganti at any time much less did they held the lands attached by way of inam to that office.   Once  Rawala Ninga was the owner of original barawardar of the Neeraganti of  the  two villages yeliyur and yerehalli as per Ex.D1 and D2, the Barabaluthi registers of  the  respective  villages. Respondents  2  to  4 claim that they are the descendants of original Barawardar.  Various documents  put  forth  in  the proceedings were critically examined by the learned District Judge and he held that these documents would show that Jatta Boyi  son  of  Rawala Ninga, Thammaiah son of Rawala Ningana Rawala and Linga son of Mudda  Boyiwere  were  enjoying  the Neeraganti  Inam  lands  and  rendering Neeraganti services. Thammaiah was shown as son of Rawala  Ningana  Rawala,  i.e. grand son of Rawala Ninga.  The documents disproved the case of  respondents 2 to 4 that Thammaiah was great grand son of Rawala Ninga.  The District Judge also held that  there  was no  document  to show tha relationship of respondents 2 to 4 or to show that they  actually  performed  the  ’Neeraganti’ work  or  that  they  were  in possession of Neeraganti Inam lands at any time.  He also examined the oral  evidence  put

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forth  before  the  Court  in the absence of any document in support of the claim.  He held ultimately that respondents 2 to 4 having placed no reliable evidence to  show  that  they are  the  descendants of the barawardar or that they were at any time performing Neeraganti services or that they were in possession of Inam lands.  As such they cannot be held to be either authorised holders holding  the  lands  orholders  of village office on the appointed date.  On that basis he held that the claim of respondents 2 to 4 was nightly rejected by the Tehsildar. On the claim made by the appellant he concluded on a careful examination of the  documents  produced  before  him that  the  kirdi  extracts which show that the appellant had been paying land revenue for the Neeraganti Inam lands  from 1950-51  and  therefore  it would appear that he has been in possession of the Inam lands from about 10 to 12 years prior to the  appointed  date.    However,  he  noticed  that  the appellant  is  not  an  authorized  holder  inasmuch  as the appellant had not been appointed as Neeraganti by any order. Even if he had been performing the duties of  Neeraganti  on the  appointed  date,  there was no evidence to show that he was holder of a village office  and  therefore,  he  had  no right  to  the  office in terms of Section 2 (g) of the Act. On that basis the District Judge rejected the claim made  by the appellant. The  appellant  as  well  as  respondents  2  to 4 preferred Revision Petitions arising under Section 115 of the Code  of Civil Procedure.    The  High  Court upheld that part of the order by which the learned District Judge rejected the claim of the appellant.  However, on the claim by respondents 2 to 4 the High Court allowed the Revision Petition and set aside the order made by the learned District Judge and allowed the claim of respondents 2 to 4 for re-grant  of  the  lands  in question.   It  is  against this order, this appeal has been preferred by special leave. So  far  as  the claim of the appellant is concerned the finding of the learned District Judge as affirmed by the High Court is unexceptionable.    The  object  of  Karnataka Village  offices  Abolition  Act, 1961 is to abolish village offices which were held hereditarily before the commencement of the Constitution and the emoluments appertaining  thereto and to  provide for incidental maters.  ’Village office’ has been defined under the Act as to mean a  village  office  to which  emoluments  have  been  attached  and  which  is held hereditarily before the  commencement  of  the  Constitution under  an  existing  law  relating  to  such  office for the performance  of  duties  mentioned  therein;  "holder  of  a village  office"  or  "holder" would mean a person having an interest in a village office under an existing law  relating to such  office.  By no stretch of imagination appellant can lay claim to any such office.  No material was placed by him to show that he held  the  office  hereditarily  before  the commencement  of the Constitution much less did he trace his title to any  such  person  to  held  that  office  in  that capacity.   Therefore,  the  appellant’s  claim  was nightly rejected by the learned District Judge and the High Court. So far as the direction to re grant to respondents 2 to 4 the lands in question is concerned, we are  constrained to  state  that  the  High  Court  in  its  order  virtually re-appreciated the evidence placed before the authorities as if it was a first appeal not noticing that  it  was  only  a proceeding  arising  under  section 115 of the Code of Civil Procedure.  The learned District Judge had referred to every piece of material placed before the Court in  the  shape  of oral  or  documentary evidence and came to the conclusion as

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we have  noticed  earlier  in  the  course  of  this  order. Therefore,  it  was  not  open  to  the High Court at all to re-appreciate the matter  unless  it  could  find  that  the District  Judge  had  committed any error of jurisdiction or acted with material irregularity affecting his jurisdiction. No such contention has been recorded.  On this ground  alone the  order  made  by  the  High  Court on this aspect of the matter will have to be set aside. We will  examine  the  matter  on  merits as well.  The High Court came to the conclusion that respondents 2  to  4  have proved  that they are the descendants of original barawardar Rawala Ninga  through  Thammaich.    Without  examining  the correctness  of  this  finding  even  if  we assume it to be correct, there is no finding to the effect that  respondents 2  to  4 performed the Neeraganti services or that they held village  offices  before  the  appointed  date  or  were  in possession of  the  inam  lands.    The  mere  fact  that an unauthorised holder of lands resumed under Section 4 of  the Act  is  liable  to  be evicted will not confer any night on respondents 2 to 5 as provided under Section 6 of  the  Act. Unless  it  can  be  shown  that  a claimant was holder of a village office and immediately prior to the  appointed  date held  the  resumed  lands, the question of re-grant of lands under Section 5 of the Act  would  not  arise.    When  this requirement  under Section 6 of the Act was not available as no material had been put forth  before  the  Court  on  this aspect  much less any finding recorded, the High Court could not have given a direction for re-grant of the  lands.    In that  view of the matter we cannot sustain the order made by the High Court.  Therefore, we set aside the order  made  by the  High  Court  directing  re-grant  of lands in favour of respondents 2 to 4. In the result, the appeal is allowed, the order made by the High Court is set aside to the extent indicated above restoring that of the learned Distinct Judge.   However,  in the  circumstances of the case, there will be no order as to costs.