Karnataka High Court
M Govardhan S/O.M Hanumanna Age 60 Years vs The State Of Karnataka Rep By Deputy ... on 11 August, 2023
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RSA No.5638 OF 2010
IN THE HIGH COURT OF KARNATAKA
DHARWAD BENCH
DATED THIS THE 11TH DAY OF AUGUST, 2023
BEFORE
THE HON'BLE MR JUSTICE ANIL B KATTI
REGULAR SECOND APPEAL NO.5638/2010 (DEC & INJ)
BETWEEN:
SRI.M.GOVARDHAN
S/O. M.HANUMANNA
AGED ABOUT 60 YEARS
R/O DOOR NO.72/2
MAIN ROAD, FORT
BELLARY-583 102
...APPELLANT
(BY SRI.U.M.SHEELAVANT, ADVOCATE)
AND:
1. THE STATE OF KARNATAKA
REPRESENTED BY
DEPUTY COMMISSIONER
Digitally
signed by BELLARY-583 103
SAMREEN
SAMREEN AYUB
AYUB DESHNUR
DESHNUR Date: 2. THE DEPUTY DIRECTOR OF LAND RECORDS
2023.09.01
10:38:41 - BELLARY-583 103
0700
3. THE STATE OF KARNATAKA
BY THE ASSISTANT COMMISSIONER
BELLARY-583 103
...RESPONDENTS
(BY SRI.PRAVEEN UPPAR, HCGP)
***
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RSA No.5638 OF 2010
THIS REGULAR SECOND APPEAL IS FILED U/S 100 OF CPC.,
PRAYING AGAINST THE JUDGMENT AND DECREE DATED: 22.12.2009
PASSED IN R.A. NO.145/2008 ON THE FILE OF THE PRESIDING
OFFICER, FAST TRACK COURT II, BELLARY, DISMISSING THE
APPEAL, FILED AGAINST THE JUDGMENT AND DECREE, DATED:
20.09.2008 PASSED IN O.S.NO.375/2000 ON THE FILE OF THE PRL.
CIVIL JUDGE (SR.DN) AND CJM, BELLARY, DISMISSING THE SUIT
FILED FOR DECLARATION AND INJUNCTION.
THIS REGULAR SECOND APPEAL COMING ON FOR FINAL
HEARING AND THE SAME HAVING BEEN HEARD AND RESERVED FOR
JUDGMENT ON 09.06.2023, THIS DAY, THE COURT PRONOUNCED
THE FOLLOWING:
JUDGMENT
Appellant/plaintiff feeling aggrieved by judgment of First Appellate Court on the file of Fast Track Court-II, Bellary in RA.145/2008 dated 22.12.2009 preferred this appeal.
2. Parties to the appeal are referred with their ranks as assigned in the trial court for the sake of convenience.
3. The factual matrix leading to the case of plaintiff can be stated in nutshell to the effect that plaintiff is absolute owner of property bearing No.94/1-A2, Ward No.XXV, -3- RSA No.5638 OF 2010 Block No.IV and in possession of the said property since from the date of purchase under registered sale deed dated 28.02.1994 from C.Mohammed Yusuff son of Abdul Rahiman Sab. In pursuance of the said sale deed name of plaintiff is recorded in the records of the suit property and plaintiff is regularly paying taxes. The plaintiff obtained license No.198/9495 dated 12.10.1994 with approved building plan. However, defendant No.2 cancelled the name of plaintiff's vendor on 11.08.1995. In this regard proceedings took place in the writ petitions pleaded in the plaint challenging the order of defendant No.2. During the pendency of the said proceedings, the plaintiff filed OS No.538/1999 and completed the construction by investing the huge amount. The defendant Nos.1 to 3 are unnecessarily interfering in peaceful possession and enjoyment of the suit property and issuing notices to vacate the suit property. Therefore, plaintiff was constrained to institute the suit on hand for relief claimed in the suit.
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RSA No.5638 OF 2010
4. The suit of plaintiff was initially only for the relief of bare injunction. However, in view of orders on I.A.No. IV got amended the plaint with necessary pleading for seeking the relief of declaration and consequential relief of injunction.
5. In response to the suit summons the defendants appeared through learned DGP and filed written statement contending that land in question is a Government land and the vendor of plaintiff C.Mohammed Yusuff had no any valid title over the suit property. Therefore, the plaintiff did not acquire any valid title over the suit property by virtue of registered sale deed dated 28.02.1994. The name of plaintiff's vendor was entered in the records of suit property by tampering the records and there is no any person by name C.Mohammed Yusuff. The defendant No.2 has filed complainant against the persons responsible for tampering the records in entering the name of plaintiff's vendor with respect to suit property. The plaintiff being aware even before construction of the house -5- RSA No.5638 OF 2010 about litigation initiated by defendant No.2 challenging the title of plaintiff has proceeded to complete the construction without seeking any modification of the order in terms of observations of this Court in WP.No.19777/1999 and now cannot seek any equity. Therefore, prayed for dismissal of the suit.
6. On the basis of pleadings of both the parties, the Trial Court has framed necessary issues. Plaintiff to prove his case relied on the evidence of PW.1 to 4 and the documents at Ex.P.1 to P. 31. Defendants relied on the evidence of DW.1 and the documents at Exs.D.1 to D.5. The Trial Court after appreciation of evidence on record has dismissed the suit of plaintiff.
7. Plaintiff challenged the said judgment and decree of the Trial Court before the First Appellate Court on the file of Fast Track Court-II at Bellary. The First Appellate Court after re-appreciation of evidence has dismissed the appeal and confirmed the judgment and decree of Trial Court. -6-
RSA No.5638 OF 2010
8. Appellant/Plaintiff challenging the concurrent findings of both the Courts below contended that plaintiff is bona fide purchaser of suit property based on the records standing in the name of his vendor. The defendants are not disputing the name of plaintiff's vendor was recorded in the records and execution of registered sale deed dated 28.02.1994 in favor of plaintiff. The alleged tampering of records in recording the name of plaintiff's vendor has not been proved by the defendants. Therefore, under these circumstances both the Courts below were not justified in dismissing the suit of plaintiff. The approach and appreciation of oral and documentary evidence by both Courts below are contrary to law and evidence on record. Therefore, prayed for allowing the appeal and to set aside the judgment and decree of both Courts below, consequently to decree the suit of plaintiff.
9. In response to notice of appeal, learned HCGP appeared for respondents.
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RSA No.5638 OF 2010
10. This Court by order dated 24.04.2014 admitted the appeal by framing following substantial question of law;
Whether the Trial Court as well as First Appellate Court has committed the serious error in dismissing the suit by ignoring the material evidence on record, more particularly when the plaintiff is in possession of the house put up by him in the schedule property after obtaining license from the competent authority and thus, the judgments have become perverse and illegal?
11. Heard the arguments of both sides.
12. On careful perusal of oral and documentary evidence placed on record by both the parties, it would go to show that plaintiff is the owner of suit property by virtue of registered sale deed dated 28.02.1994 executed by C.Mohammed Yusuff Ex.P.1. The name of plaintiff's vendor was recorded in the records of suit property. The evidence of attesting witness PW.2 to 4 and the oral evidence of PW.1 would speak about vendor of plaintiff C.Mohammed Yusuff executed registered sale deed dated -8- RSA No.5638 OF 2010 28.02.1994 and accordingly the name of plaintiff is recorded in the records of suit property and plaintiff was paying regular taxes related to the suit property. The plaintiff being in possession of suit property by virtue of registered sale deed dated 28.02.1994 obtained necessary license No.198/9495 dated 12.10.1994 with approved building plan for constructing house. Therefore, by virtue of above referred evidence on record plaintiff has proved execution of registered sale deed dated 28.02.1994 by his vendor C.Mohammed Yusuff.
13. The crux of the matter is as to whether the vendor of plaintiff was having valid title to convey the same in favor of plaintiff by virtue of registered sale deed dated 28.02.1994. It is the duty of plaintiff to prove in a suit for the relief of declaration based on title document has to necessarily prove the title of his vendor who could validly convey the title in favor of plaint over the suit property by virtue of registered sale deed dated 28.02.1994. -9-
RSA No.5638 OF 2010
14. Plaintiff apart from his own evidence as PW.1 relies on the documents Ex.P.4 to 7 encumbrance certificates issued by Sub Registrar, Bellary for different periods. On perusal of the said documents Ex.P.4 to 7, it would go to show that other than the transaction of the plaintiff no any transactions are forthcoming. The said documents does not speak anything as to how the vendor of plaintiff acquire title over the suit property. Indisputably the land bearing No.TS.No.94 (old survey No. 522/1A/6) originally belongs to the Government. The entries in the records recorded in Ex.D.1 would go to show that there is no any reference order as to on what basis the name of plaintiff's vendor C.Mohammed Yusuff was recorded in respect of suit property.
15. It is no doubt true that name of plaintiff's vendor C.Mohammed Yusuff is recorded in the records of suit property and plaintiff is paying tax to the said property. It is settled position of law that the entries in the records with respect to immovable property are only having
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RSA No.5638 OF 2010 presumptive value and the same does not confer any title over immovable property in favour of person in whose name the entries are recorded. The person who seeks to get his right declared must show by evidence on record the basis on which the entries are made in the records of the property. It necessarily means that valid title document which can convey the title over the immovable property is the basis for the entries recorded in the records of the property must be established. Indisputably, the property bearing No.TS 94/2 originally belong to the Government and the same is also further certified by the document Ex.D.1. Whether there is scratching of earlier entry by using blade and the name of plaintiff vendor C.Mohammed Yusuff is recorded does not assume any much importance. Similarly, the Investigating Officer filing "B" Report on the complaint of the defendant about tampering in the Register Ex.D.1 which has not been challenged by defendant No.2 also cannot be of any much help to prove the title of plaintiff or his vendor over the suit property. What matters is, only the title document justifying the entries
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RSA No.5638 OF 2010 found in the records at Ex.D.1. On perusal of Ex.D.1, it would go to show that there is no any reference of order granting any portion of land in TS No.94/2 to the vendor of plaintiff. It has been brought on record in the cross- examination of PW.1 and DW.1 that unless there is any grant in favour of any person without there being any order from competent authority, mutation of name of new owner cannot be made in the original Register Ex.D.1. It is pertinent to note that whenever changes have taken place with regard to the property in question, the entries are found with reference to the order passed by the competent authority and the name of acquirer of right to the extent of land granted to them is appearing. However, in case of vendor of plaintiff, no any such order or reference is forthcoming in the Register Ex.D.1. The Trial Court as well as First Appellate Court adverted to this material aspect of the matter and recorded finding that there is no any title document standing in the name of vendor of plaintiff. Therefore, the vendor of plaintiff cannot convey any valid title in favour of plaintiff by virtue
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RSA No.5638 OF 2010 of sale deed dated 28.02.1994. The said finding recorded by both the Courts below are based on legal evidence on record.
16. It is not in dispute that the defendants on coming to know about title claimed by the plaintiff over the suit property proceedings have been initiated by defendant No.2 on the direction of defendant No.1. The plaintiff has participated in the proceedings and challenged the order of defendant No.2 before this Court in WP No.31300/1995 and WP No.19777/1999. The directions given by this Court in both these proceedings are only related to giving opportunity to the plaintiff before passing order by defendant No.2, further there was direction in WP No.19777/1999 Ex.P.19 to conclude the proceedings within six weeks. However, the proceedings have not been concluded within the stipulated time. Defendant No.2 has passed an order dated 14.02.2000 and the said order has not been challenged by the plaintiff. On the contrary, plaintiff by filing OS No.538/1999 proceeded to complete
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RSA No.5638 OF 2010 the construction on the basis of approved plan which was already been obtained. It is pertinent to note that by this time it was within the knowledge of plaintiff that defendant No.2 has already initiated proceedings against the plaintiff questioning his title over the suit property. However, inspite of it, the plaintiff without challenging the order of defendant No.2 dated 14.02.2000 chosen different forum by filing suit in OS No.538/1999 and proceeded to complete the construction. This conduct of the plaintiff would only demonstrate that he is under an impression that once if the construction is completed nothing can prevent him from claiming title over the suit property.
17. Learned counsel for appellant also contended that I.A.No.IV was filed under Order 1 Rule 10 of CPC to implead the legal representatives of vendor of plaintiff. The said application was opposed by legal representatives contending that their father was not having any property at Fort area in Bellary. The said application came to be rejected by order dated 23.06.2006. The said order has
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RSA No.5638 OF 2010 not been further appealed. Therefore, it is evident that the claim of legal representatives that their father was not having any property in Fort area Bellary holds good.
18. Learned counsel for appellant also contended that there is no question of plaintiff challenging the order of defendant No.2 dated 14.02.2000, since the defendants have no authority to decide the title of the parties. The same contention was also raised before both the Court below with reference to the judgment of this Court reported in Smt. Papamma vs. The Deputy Commissioner and others reported in ILR 2005 Kar. 5777. There cannot be any dispute to the principle of law enunciated in the said judgment that revenue authorities have no power to decide the issue of title over the property. In the present case, the proceedings that took place before defendant No.2 is with respect to the correctness of entries recorded in Ex.D.1. In that context of the matter, defendant No.2 has incidentally referred with source of title of plaintiff's vendor in recording his
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RSA No.5638 OF 2010 name in the records of the property. The defendant No.2 has such authority to decide the entries recorded in the Register and it's correctness. Therefore, the said decision has no application to the facts of the present case.
19. Learned counsel for appellant has also contended that plaintiff has verified the records relating to the suit property and the name of his vendor was recorded in the Records and, therefore, he has purchased the suit property. It means that plaintiff claims to be the bona fide purchaser of the suit property. The said contention was also urged before the Courts below and the same has not been accepted. The mere recording of name of plaintiff's vendor and verifying the same itself cannot be said as reasonable enquiry to ascertain the title of plaintiff's vendor. The plaintiff should have ascertained the source of title acquired by his vendor to justify the entries recorded in the records of the suit property Ex.D.1. However, there is absolutely no any material evidence that has been placed on record regarding the steps taken by
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RSA No.5638 OF 2010 the plaintiff to ascertain the title of his vendor. Therefore, when the vendor of plaintiff was not having any valid title over the suit property cannot convey any title in favour of plaintiff by virtue of the registered sale deed dated 28.02.1994. On the other hand, it is clear from Ex.D.4 Extract of TS No.94 was Government land described as gram kantham and some portion of it granted to different persons and remaining portion has been mentioned as either dry or paramboke or Khaali bylu. Therefore, the recording of name of plaintiff's vendor without there being any source of title either by grant of Government or by purchase under registered sale deed cannot confer any title in favour of vendor of plaintiff.
20. It is true that plaintiff by virtue of registered sale deed dated 28.02.1994 claims to have acquired title over the suit property. However, in view of the reasons stated above, it has been observed and held that vendor of plaintiff was having no any valid title over the suit property to convey the same in favour of plaintiff by virtue of
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RSA No.5638 OF 2010 registered sale dated 28.02.1994. The evidence also would go to show that during the pendency of proceedings before defendant No.2, the plaintiff without challenging the order of defendant No.2 and further pursue his remedy before defendant No.2 in which he has already participated has chosen different forum and filed OS No.538/1999 and proceeded with construction. Therefore, though the plaintiff is in possession of the property without there being any title cannot seek equity to protect his possession. If at all the plaintiff is having any remedy of his vendor conveying title in his favour by virtue of registered sale deed dated 28.02.1994 without valid title then it is open for him to proceed against the legal representative of his deceased vendor. The courts below have rightly appreciated the evidence on record and were justified in refusing to grant the relief claimed by the plaintiff in the suit. The said finding recorded by both the Courts below are based on material evidence on record and does not call for any interference of this Court. The
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RSA No.5638 OF 2010 substantial question of law is accordingly answered in 'Negative'. Consequently, proceed to pass the following;
order The appeal filed by the appellant/plaintiff is hereby dismissed.
The judgment of the First Appellate Court on the file of Fast Track Court -II, Bellary, in RA No.145/2008, dated 22.12.2009 is confirmed.
Registry is directed to send back the records along with a copy of this judgment to the Court below.
(Sd/-) JUDGE gsr/mv