Karnataka High Court
Mani Bai vs Gemu on 7 October, 2017
Author: K.N.Phaneendra
Bench: K.N.Phaneendra
1
IN THE HIGH COURT OF KARNATAKA
KALABURAGI BENCH
DATED THIS THE 7TH DAY OF OCTOBER 2017
BEFORE
THE HON'BLE MR. JUSTICE K.N.PHANEENDRA
REGULAR SECOND APPEAL No.902/2005
BETWEEN:
1. MANI BAI W/O KASNU CHAVAN
AGE: 59 YEARS
2. THAWARU S/O DAMLA CHAVAN
AGE: 49 YEARS
BOTH R/AT. LACHU NAIK
TANDA, KALGI
TAL,UK CHITTAPUR-585211
DIST: GULBARGA. .....APPELLANTS
(BY SRI.K.DHIRAJ KUMAR, ADVOCATE)
AND:
GEMU S/O MONU CHAVAN
AGE: 69 YEARS
R/O: KALGI
TALUK CHITTAPUR
DIST: GULBARGA-585211. ...RESPONDENT
(BY SRI.CHAITANYA KUMAR, ADVOCATE)
2
THIS REGULAR SECOND APPEAL IS FILED
UNDER SECTION 100 OF CPC PRAYING THIS COURT
TO ALLOW THIS APPEAL BY SETTING ASIDE THE
JUDGMENT AND DECREE DATED 17.03.2005 PASSED
IN R.A.NO.9/2002 BY THE LEARNED CIVIL JUDGE
(SR. DN) SEDAM CONFIRMING THE JUDGMENT AND
DECREE DATED 11.03.1999 PASSED IN
O.S.NO.16/1993 BY THE LEARNED CIVIL JUDGE (JR.
DN) CHITTAPUR AND TO DISMISS THE SUIT OF THE
PLAINTIFF.
THIS APPEAL COMING ON FOR FINAL HEARING
THIS DAY, THE COURT DELIVERED THE FOLLOWING:
JUDGMENT
After hearing both the parties at the time of admission this Court has framed following substantial question of law for consideration :-
3
"Whether the courts below were justified in granting a decree for declaration of title in favour of the plaintiff in the absence of title deeds being produced in the case?"
2. After hearing the parties on merits of the case and also on the above substantial question of law, I feel it is just and necessary to frame one more substantial question of law in the following manner.
"Whether the trial Court and the First Appellate Court have committed any serious legal error in holding that Ex.D.1 and Ex.D.15 is inadmissible document and that the contents of the said documents cannot be looked into?
3. In order to answer the above said substantial questions of law, though it is not required to go to all the details, but it is just and necessary for this Court to have the brief factual aspects of the matter. Hence, I prefer to go through the pleadings of both the parties to ascertain what exactly their case. The relationship between the parties which is not in dispute is as noted below.
4
Gopu
Bimla Monu Dalju Damla
Somla Gemu Tawaru
(P) (D.2)
Kansu Chavan
Manibai (D.1)
4. Plaintiff by name Gemu son of Monu has
filed a suit against the defendants by name Manibai and Thawara. The plaintiff claimed that the plaintiff is the owner of the suit schedule property i.e., land bearing Sy.No.175/17 measuring 15 acres 36 guntas situated at village Kalgi in Chittapur Taluka. The plaintiff claimed that the said property was exclusively possessed by his father. After the death of his father, the plaintiff has filed an application for mutation of his name in the revenue records. It is further contended that after hearing the defendants who have filed objections to the 5 said petition, Deputy Tahasildar Kalgi vide order dated 20.03.1984 passed an order to record the revenue entries in the name of the plaintiff. The said order became final and no appeal has been preferred against the said order.
5. The defendants who have no right, title or interest over the property colluding with the Village Accountant have mutated their names in the Pahani of the suit land on 11.01.1993. Being felt aggrieved the plaintiff filed a suit stating that, under the guise of said mutation entries the defendants are intending to transfer the said land. Therefore, the plaintiff filed a suit for declaration and injunction etc., The plaintiff has also prayed for cancellation of sale deed dated 05.02.1993 executed by the defendant No.1 in favour of the Government as null and void.
6
6. The defendants have contested the said suit by filing detailed written statement. It is the case of the defendants that defendants No.1 and 2 are only claiming to the extent of 05 acres 20 guntas each in the Sy.No.175/17 being fallen to their share. They denied that the plaintiff is the exclusive owner in possession of the entire suit land. It is specific case of the defendants that they have been in possession and enjoyment of the portion of suit land i.e., to the extent of 05 acres 20 guntas each from 30.09.1991. It is further specific case of the defendants that on 30.09.1991 there was a partition of the suit schedule property. As per settlement before the respectable persons and the village the west-north portion of suit property measuring 05 acres 20 guntas was allotted to defendant No.1 i.e., towards her husband's share. The west-south portion measuring 05 acres 20 guntas was allotted to defendant No.2 and remaining eastern portion measuring 04 acres 36 guntas was allotted to plaintiff 7 who in turn allotted to his son Heroo. As per the agreement and consent given by the plaintiff, the mutation was accepted and the entries were made in the record of rights by the revenue authorities. The plaintiff clandestinely suppressing these real facts has filed a false suit on false allegations. The defendants claimed that since 30.09.1991 they have been in actual possession and enjoyment of their respective shares by cultivating the said land. Except one acre of land which was sold to the Government. Therefore, defendants have pleaded that the plaintiff is not entitled for any relief as prayed for.
7. On the basis of above said rival contentions, the trial Court has framed the following Issues:-
1. Whether plaintiff proves that he is owner in possession of suit property?8
2. Whether defendants prove that suit property is ancestral property of plaintiff and defendants?
3. Whether defendants prove the alleged partition as contended in para-9 of their W.S.?
4. Whether plaintiff proves the obstruction?
5. Whether plaintiff is entitled for declaration and injunction as prayed for?
6. What order or decree?
8. In order to prove the case, the plaintiff got examined himself as PW.1 and three more witnesses are examined as PW.2 to 4 and got marked documents Ex.P.1 to Ex.P.3. The defendant No.1 examined herself as DW.1 and three more witnesses examined as DW.3 to
5. Defendant No.2 was examined as DW.2. In all they have produced 17 documents.
9
9. After hearing both the parties and appreciating the oral and documentary evidence on record the trial Court has given findings on Issues No.1 and 4 in the affirmative, Issues No.2 and 3 in the negative and Issues No.5 partly in the affirmative. Ultimately, decreed the suit of the plaintiff declaring that the plaintiff is the owner and possessor of suit land to the extent of 14 acres 36 guntas in the said survey number. However, dismissed the suit so for the relief of declaration that, the sale deed dated 05.02.1992 executed by the defendant No.1 in favour of the Government is null and void.
10. Being aggrieved by the said judgment and decree the defendants have preferred regular appeal before Civil Judge (Sr. Dn) Sedam in R.A.No.9/2002. The First Appellate Court on the basis of factual aspects and pleadings of the parties and on the basis of findings given by the trial Court on the issues framed, has framed the following points for consideration:- 10
01. Whether plaintiff proves his title and possession over the suit land and defendants are denying his title and causing interference into his possession?
02. Whether appellants have made out grounds to interfere with judgment and decree passed by the trial judge?
11. The First Appellate Court also after re- appreciation of material on record has given findings on points No.1 in the affirmative and point No.2 in the negative. Consequently, dismissed the appeal concurrently holding that judgment and decree of the trial Court is proper and correct.
12. Being aggrieved by the said two concurrent judgments the present appeal has been preferred. 11
13. The learned counsel for the appellants strenuously contended before this Court that the plaintiff who came before the Court has to establish that the plaintiff is the absolute owner and his father exclusively acquired the said property. There is no pleading as to how his father acquired the suit schedule property. There is no material to show that on what basis his father acquired the title over the property so as to succeed such interest or estate of his father. Further the learned counsel for the appellants contended that the documents produced before this Court also does not establish as to how the father of the plaintiff has acquired the suit schedule property. Further she contended that the grant certificate alleged to have been issued by the Government in favour of the father of the plaintiff is not been produced in order to prove the title. Though an attempt is made during the course of the trial by producing the documents to show that the name of the plaintiff entered in the revenue 12 records, itself is not a ground to grant a decree. Therefore, both the Courts have committed serious legal error in granting declaration decree in favour of the plaintiff.
14. Per contra the learned counsel for the respondent strenuously contended that, though there is no pleading to the effect, but the plaintiff claimed that his father is the absolute owner of the property and he succeeded to the property, On the basis of revenue entries produced before the Court for the year 1955-56 showing that, the plaintiff's father was in possession and enjoyment of the property. Though grant certificate is not produced, but to show the continuous possession over the property disclose that he acquired the suit schedule property. Further more in the year 1984 the Deputy Tahasildar in his order dated 23.09.1984 observed that, the land has been granted in favour of plaintiff's father. The entries have been made out 13 accordingly in favour of the plaintiff. The said order is not challenged. Therefore, over all looking into the oral and documentary evidence the plaintiff has established the title on the basis of the revenue records. Hence, the trial Court and the First Appellate Court have not committed any serious legal error in this regard.
15. So, far as second question is concerned the learned counsel for the appellant strenuously contended that both the courts have committed serious legal error in holding that the Ex.D.1 and Ex.D.15 are partition deeds or they are relinquishment deeds. The Courts did not go in detail into the contents of these documents, but wrongly decided that, they are partition deed or relinquishment deeds. Therefore, the said documents required registration. These documents were objected by the other side, at the time of marking. As such both the courts at the time of deciding the matter held that these documents are inadmissible in evidence. Therefore, they 14 did not appreciate in detail the contents of the documents. The learned counsel further submits that the said documents, if they are meticulously seen, they are only consent letters, regarding earlier partition between the parties and no objection for entries to be made accordingly in the revenue records. Therefore, these documents need not require registration. Hence, both the courts have committed serious legal error in holding that these documents are inadmissible in evidence and as well as these documents did not create any right, title or interest over the property.
16. Per contra learned counsel for the respondent strenuously contended that even these documents are considered to be admissible in evidence and proved by examining the attesting witnesses, these documents recite that the defendants claimed that they have got property under partition and the revenue entries made on the basis of said documents. The said 15 documents are entered into between the parties by recording partition between parties by metes and bounds and possession taken on the same day. Hence, these documents require registration and both the courts rightly held that, these documents are not admissible, they cannot be looked into even for any collateral purpose. Therefore, both the courts have not committed any serious legal error in refusing to act upon such documents. Hence, appeal is liable to be dismissed.
17. In view of the submission made, now I will discuss the questions one by one.
First question of law :-
18. Both the courts on this point is concerned, have come to the conclusion that on the basis of long standing revenue records in the name of father of plaintiff by name Monu plaintiff is entitled for 16 declaration. But it is well recognized principles of law that, the plaintiff once pleaded that he became the absolute owner of the property, he is bound to produce necessary documents or lead such oral evidence before the Court to show that, the said property has been acquired by himself or his father by any recognized mode under law for the time being in force. It is the case of the plaintiff in the pleadings itself that it is stated, the plaintiff is the owner and possessor of the suit land and defendant No.2 is a cousin brother of plaintiff and plaintiff is the wife of another cousin brother of plaintiff. Except that, in what manner as to how the plaintiff's father has acquired the said property is nowhere explained. Therefore, there is absolutely no pleadings with regard to the acquisition of the property by the father of plaintiff or by the plaintiff himself. The defendants have in fact denied the exclusive possession and ownership of the father of the plaintiff. Therefore, it is the burden on the plaintiff to prove before the Court 17 by means of cogent pleadings and evidence with regard to his ownership. During the course of evidence the plaintiff has made an attempt to produce certain documents to prove the ownership of his father and subsequently by himself. He relied upon main documents i.e., Ex.P.3 and also Ex.D.17. Of course Ex.P.3 discloses that the father of plaintiff by name Monu's name has been entered in the cultivator column, showing his name for the year 1955-56 to 1957-58, as a Pattadar. But nowhere it is mentioned in that particular column on which date under which order of Government the said land has been granted to the father of plaintiff. The plaintiff has also never stated the specific date and order of grant of such land in the exclusive name of his father.
19. Further he has also relied upon Ex.D.17. It further creates a serous doubt with regard to the absolute ownership of the plaintiff's father Monu. The 18 said document is the Pahani extract for the period of 1958-59 to 1960-61. In the said document in the occupants column Monu's name is recorded (father of plaintiff). But in another column with regard to "other rights and liability" column the names of Monu, Bhimalu, Damalu and Dhanju, are mentioned and that they have also got share (hissa) in the said land. If these two documents properly understood, the Court can not come to a definite conclusion that Monu has became the exclusive owner of the said property so that, the plaintiff can acquire the title from his father by means of inheritance. It is not explained in the evidence or in the pleadings as to how the names of Bhimalu, Damlu and Dhanju were shown in Ex.D.17 specifically mentioning the rights of these persons. Therefore, these two documents in my opinion does not confer any title on Monu or in favour of the plaintiff.
19
20. The plaintiff has also relied upon another document it is said to be order passed by the Deputy Tahasildar in the year 1984 as per Ex.P.2. The said document discloses that the plaintiff has made an application for change of mutation entry into his name from the name of his father Gemu. The plaintiff's counsel drawn my attention that, in the order of Tahasildar it is specifically stated that the said land has been granted in favour of the father of the plaintiff. It is carefully seen that, the Tahasildar has mentioned that Sy.No.175/17 measuring 15 acres 36 guntas was a Government land and assigned in favour of Monu. As the defendants (appellants herein) have not contested the proceedings before the Deputy Tahasildar. The Thasildar has passed such an order for change of mutation entry in the name of plaintiff. But the order of the Tahasildar does not disclose that, he has considered the documents Ex.P.3 and as well as Ex.D.17 or any grant order. If the Tahasildar would have considered 20 these two documents, what would have been his order cannot be imagined by this Court. However, it is not clear in the order of the Tahasildar dated 20.03.1984 as to under which order of grant the land has been granted. It is seen that, the plaintiff has claimed ownership only on the basis of revenue entries bereft of producing any documents of title, like grant certificate by the Government. A doubt occurred to the mind of the Court with regard to the Ex.P.3 and Ex.D.17 has not been clarified during the course of the evidence by the plaintiff. Though an attempt was made to explain that the land was granted in favour of the father of the plaintiff.
21. The learned counsel for the respondent made certain efforts before the Court by citing the ruling of this Court reported in 2015 (1) KCCR 823 in the case of Shankarbhat /vs/ State of Karnataka by the Deputy Commissioner Bagalkot and others, at Head Note (C) the Court has observed that 21 "Suit for Declaration and permanent injunction, suit for entries in revenue records showing names of plaintiff and certain defendants as owners, shows their possession, possession follows title, trial Court not appreciating real state of affairs in the wake of overwhelming evidence on record, not testing on touchstone of intrinsic probabilities, dismissing suit, suit decreed".
22. Even applying the said principle, to this particular case, I have already expressed that the revenue documents are not consistent with each other. There are some discrepancies with regard to the mentioning the name of the father of plaintiff alone for a period of two years and mentioning the names of other brothers of plaintiff's father for another two years and also showing the possession of Monu continuously for a long period. Therefore, those entries cannot be a firm foundation to seek title. There is no explanation as to why the names of brothers of father of plaintiff have been mentioned in the revenue records as per Ex.D.17. 22 It creates a serious doubt as to whether the land has been actually granted exclusively in the name of Monu or in the names of all the brothers and thereafter the names of brothers of the plaintiff's father are also been entered for a period of two years. The said mistery is not explained either in the course of the evidence or at the time of arguments. Therefore, above said decision is not in a straight jacket manner applicable to this case.
23. It is fundamental basic principle of Civil Law that, a person claims ownership over any property, then there shall be a specific plea with regard to the acquisition of property and also the plea shall be proved by satisfactory evidence to draw an inference with regard to the acquisition of the property in a particular mode recognized by law for time being in force. As stated and narrated in the above the plaintiff has not narrated as to how his father alone exclusively acquired the property and in what manner. Neither he explained 23 the discrepancy in the revenue records as discussed above. Under the above facts and circumstances, only on the basis of oral evidence bereft of pleadings and on the discrepant documents, the trial Court and the First Appellate Court have committed serious legal error in holding that the plaintiff has established his title. Therefore, I am of the considered opinion that the judgment of the trial Court and the First Appellate Court so far declaring that, the appellant is the absolute owner of the property, is erroneous and judgment requires to be set-aside, to that extent.
Second question of law :
24. The second point is regarding possessory relief is concerned, both the courts have consistently held that the defendants have not established their possession over the property. On the other hand the defendants have admitted the possession and enjoyment by plaintiff and also his father up to 24 30.09.1991. It is the case of the defendants that on 30.09.1991 as per Ex.D.1 and Ex.D.15 they acquired the right, title, interest and possession over the said property by way of partition and that, by way of declaration by the plaintiff on executing Ex.D.1 and Ex.D.15. It is also contended by the defendants counsel that the trial Court and the First Appellate Court have not properly understood the nature of Ex.D.1 and Ex.D.15. Both the courts have erroneously came to the conclusion that these documents are not admissible in evidence. Therefore, of course did not go into the details of the contents of the said documents in order ascertain the possession of the said property by the defendants.
25. Per contra the learned counsel for the respondent strenuously contended before this Court that Ex.D.1 and Ex.D.15 are the documents which are denied by the plaintiff. Further added to that, even the contents of the said documents are accepted they are styled as partition deeds between the parties and the 25 same are not been registered. Therefore, as per Section 17 of Indian Registration Act these documents are not admissible in evidence. Therefore, both the courts have rightly held that these documents are not admissible. Further the learned counsel for the appellants contended that even for any reason if Court is of the opinion that, these documents does not convey any right, title or interest over the property. Nevertheless the said documents can be considered only for the purpose of ascertaining the nature of the property and separate possession of the property by the parties. The said documents can be used for collateral purpose for ascertaining the possession over the property.
26. Of course, the above said principle has been canvassed by the learned counsel for the appellant is supported by a decision of the Apex Court reported in AIR 1976 SC 807 between Kale and others Vs. Dy. Director of Consolidation and others wherein the Apex Court has observed that :
26
"If the family settlement must be a bonafide one so as to resolve family disputes. The family arrangement may be even oral in which case no registration is necessary. The registration would be necessary only if the terms of the family arrangement are reduced into writing. Here also a distinction containing the terms and recitals of a family arrangement made under the document and a mere memorandum prepared after the family arrangement had already been made either for the purpose of the record or for information of the Court for making necessary mutation. In such a case the memorandum itself does not create or extinguish any rights in immovable properties and is therefore, not compulsorily registrable.
27. In another decision reported in (2015) 16 Supreme Court Cases 787 between Yellapu Uma Maheswari and another and Buddha Jagadheeswararao and others, the Apex Court denotes as under:
A. Registration Act, 1908 - Ss. 17(1)(b) and 49 - Document effecting relinquishment of right in respect of immovable property - held, requires compulsory registration.27
B. Registration Act, 1908 - S.17(1)(b) -
Unregistered and unstamped partition deed - Deed of relinquishment of right in respect of immovable property - Not admissible in evidence for primary purpose of division of joint properties by metes and bounds - But it can be relied upon for collateral purposes of severance of title and nature of possession of various shares only if it is impounded by paying stamp duty together with penalty.
28. In the above said two decisions, the Apex Court has made very much clear that, if the parties intended to separate from the joint family and records the same in writing with regard to their separation and having separate possession of the property by means of any Memorandum of Agreement, and any right, title and interest and the possession passes on the date of the agreement or family arrangement, if it is reduced into writing, such agreement or Memorandum has to be registered in accordance with the Registration Act. But the parties have already partitioned the property and 28 they were already taken over their respective shares and enjoying the property, but there was no memorandum as such entered into between the parties as on that day of separation, but for recording of the said previous partition and separate possession and enjoyment or arrangement of the family, if any document is reduced into writing, subsequently such document requires no registration. In this background, the defense of the defendants and as well as the documents Ex.D-1 and D- 15 and subsequent documents have to be considered by this Court.
29. The defendants at para-9 have specifically taken up the contention that on 13.09.1991, there was a partition of suit property as per the settlement before the respectable persons. The West-Northern portion of the suit property measuring 5 acres 20 guntas was allotted to Defendant No.1 towards her husband's share. West-South portion measuring 5 acres 20 guntas 29 of the suit property was allotted to Defendant No.2, and remaining Eastern portion measuring 4 acres 36 guntas was allotted to the plaintiff, as per the Agreements Ex.D1 and Ex.D.15 and consent was given by the plaintiff, for acceptance of mutation entries in ROR. It is also mentioned in those documents that, on that day, at the instance of well-wishers, the plaintiffs and the defendants have taken actual possession of their respective shares and started cultivating them particularly from 13.09.1991. Therefore, the pleading is very much clear by the defendants that the partition has been specifically taken place as per Ex.D.1 and Ex.D.15 by means of consent letter of the plaintiff and on that day only, the joint family severed and the defendants have specifically taken the possession of their respective shares from that day itself. There is no pleadings to the effect that earlier to the said partition, the properties were actually being enjoyed jointly by the plaintiff and the defendants. Though the legal 30 presumption arises with regard to the possession over joint family property amongst the joint family members, for the purpose of ascertaining the severity of status and separate actual possession of the property but the said presumption is rebuttable. It should be taken into consideration that from Ex.D.1 and Ex.D.15 alone, the parties have decide to severe their status and to enjoy the property by metes and bounds as stated in the written statement.
30. In this background Ex.D.1 and Ex.D.15 requires to be looked into. Ex.D.1 and Ex.d15 are almost similar one. Ex.D.1 was executed by the plaintiff in favour of defendant No.1 and Ex.D.15 was executed in favour of defendant No.2. These two documents are in vernacular in Kannada language. On meaningful understanding of word by word of the said documents, these documents clears all the doubts that the hissa was made earlier to those documents and according to 31 that, the plaintiff has no objection for change of Khata and also he has no objection for podi work and patta work with regard to said property and he would undertake to get that podi work in favour of defendant Nos.1 and 2 and they have divided the property, specifically giving some portion of land in favour of the defendants. This document has to be read with reference to the evidence and pleadings of the parties, even the defendants who have led evidence, particularly defendant No.1 has categorically admitted and stated that up to 30.09.1991, plaintiff's father and plaintiff were in possession and enjoyment of the entire 15 acres 36 guntas and it is also admitted in the pleadings and evidence that, they took over the possession of the property on the basis of Ex.D.1 and Ex.D.15 to their respective shares and started enjoying the same separately. Therefore, these two documents cannot be isolated read bereft of the written statement averments and also the evidence. The intention of the parties is 32 expressed by means of their conduct as per Ex.D.1 and Ex.D.15 and also by means of their pleadings and evidence. If it is seen from the entire materials on record, it is crystal clear that the parties have decided to severe their status and to have actual right, title, interest and possession over their respective shares from the date of Ex.D.1 and Ex.D.15. Therefore, in view of the above said decisions, I am of the opinion the said documents absolutely require registration. If the documents are not registered, naturally they are not admissible for the purpose of creating any right, title or interest over the property. Therefore, on the basis of Ex.D.1 and Ex.D.15, no right, title interest over the property conferred upon Defendant Nos.1 & 2.
31. Now coming to other important aspect, whether these documents can be used for collateral purpose, to rely upon subsequent change of katha and pahani in favour of Defendant Nos.1 and 2. Of course 33 two documents Ex.D.1 and Ex.D.15 have been proved by examining an attestor of these documents, but mere proof of the documents before the Court, it will not automatically gives any right, title and interest over the property. The possession must be established independent of these two documents and also the revenue records that, the defendants have actually taken possession on that particular date. In Ex.D.1 and Ex.D.15, there is no specific averments are mentioned on that particular date, the possession of the property has been delivered in favour of Defendant Nos.1 and 2. Even accepting the contents of these two documents, what is stated in the said documents is that, Defendant is ready to assist for podi, pertaining to the Hissa of Defendant Nos.1 & 2. Though it is stated in such a manner, subsequent revenue entries show that the said persons are shown to be in possession of the property. 34
32. But the real question arises for consideration is that, whether these documents were admitted documents by the plaintiff. It is clear from the records that, right from the beginning from 1993 itself, the plaintiff has called in question these documents and also the revenue entries made in favour of defendant Nos.1 and 2 in pursuance of the Ex.D.1 and Ex.D.15. The document which is produced before this Court i.e. an Order of this Court in the writ petition No.30416/1996 dated 06.02.1997 marked at Ex.D.14, clearly discloses that, in the year 1993 itself, the mutation was accepted in favour of defendants No.1 and 2 has been challenged before the Assistant Commissioner dated 23.04.1996. The Assistant Commissioner has allowed the appeal and cancelled the entries made in favour of the defendants No.1 and 2 in respect of the disputed property. The said Order of the Assistant Commissioner has been challenged before this Court in the above said writ petition. This Court has 35 made an observation that, by the time the appeal was filed before Assistant Commissioner, the plaintiff has already filed a suit before Trial Court. Therefore, he can invoke any one of the remedy available under law as the plaintiff has already invoked the remedy of filing the suit, again the filing appeal under Section 136(2) of the Karnataka Land Revenue Act before the Assistant Commissioner does not arise. By making such observation, this Court has quashed the Order of the Assistant Commissioner dated 23.04.1996 and held that the entries which are made by the revenue authorities in the name of defendants No.1 and 2 are subject to the decision that may be rendered by the Civil Court. Therefore, it goes without saying that, since 1993 itself, those entries are disputed entries. Even in the evidence and in the documents Ex.D.1 and Ex.D.15, there is no recitals with regard to the actual delivery of possession of the property in favour of Defendant Nos.1 and 2, but the plaintiff has taken up contention that 36 Ex.D.1 and Ex.D.15 were not executed by the plaintiff nor the defendants have entered into possession of the property and the plaintiff continued in possession of the property. Therefore, the defendants have to independently prove their possession and enjoyment over the property apart from the disputed entries in the revenue records. The presumption under Section 133 is not available so far as the defendants are concerned because of the simple reason, the said alleged possession amounts to litigious, possession from the year 1993 itself. Therefore, the evidence led by the parties play a dominant role. As I have already referred to defendant Nos.1 and 2 have not even stated that as on the day of execution of Ex.D.1 and Ex.D.15, they have actually taken over the possession and continued in possession of the property nor in Ex.D.1 and Ex.D.15, it is specifically stated about handing over of the property.
37
33. On the other hand, it is seen from the record that, as per Ex.P.2, the plaintiff's father's possession through out, up to his death has been established and considered and the documents Ex.P.3 and Ex.D-17 also shows the possession of the property had been with the plaintiff's father and by virtue of the Order of the Tahsildar in the year 1984 up to 1991, the possession over the property continued by the plaintiff's father and the plaintiff. The said order of the Tahasildar has not been challenged before any authority at any point of time. Therefore, presumption arises in respect of the said documents and entries in the RTC extracts. If, the possession of the property by defendants No.1 and 2 has not been shown to have been taken at any point of time, it goes without saying, all the entries made subsequent to 1991 on the basis of the Ex.D.1 and Ex.D.15 are rebutted by virtue of the Order of the Deputy Tahsildar dated 23.09.1984.
38
34. Considering said continuous possession over the property by the plaintiff, the Trial Court has granted an Order of injunction in favour of the plaintiff. It is worth to refer here the argument of the learned counsel that, the defendants have produced the RTC Extracts and the Kandayam paid receipt to the extent of their shares from 1991, perhaps may be the reason that the Writ Court has stated that, those particular documents or entries in the RTC Extracts are subject to the decision of the Civil Court while setting aside the Assistant Commissioner Order, the defendants might have paid the kandayam and also their names have been continued in the revenue records. When once the Court consistently held the continued possession of the plaintiff's father and plaintiff, there was no sort of dispossession at any point of time on the basis of the Ex.D.1 and Ex.D.15 and revenue records. It goes without saying that, the revenue records and kandayam paid receipts amounts to litigious documents which can 39 not be taken into consideration for the purpose of holding the possession of defendants over the property. On the other hand, the continuity of the possession of the plaintiff has been established even as on the date of the suit.
35. Therefore, I am of the opinion, the Trial Court though committed some error in not admitting the documents Ex.D.1 and Ex.D.15 for collateral purpose, but they are very well in their jurisdiction to say that, those documents are not admissible for the purpose of the ascertaining right, title, interest over the property, As even accepting the contents of the those documents, this Court is of the opinion that, the contents of the said documents also do not come in aid of the defendants in order to establish the actual possession over the property. In the given set of facts of law, I am of the opinion, both courts have not committed any serious legal error in granting an Order 40 of injunction in favour of the plaintiff. It goes without saying that there are discrepancies in the revenue records as noted above. The plaintiff has not established that his father was exclusive grantee of the land and further discrepancies in Ex.P.3 and Ex.D.17 disclose that at undisputed point of the time in the year 1960, the name of 1st defendant's father-in-law, 2nd defendant's father and plaintiff's father have entered as Hakdars. The defendants on the basis of such materials ought to have been claimed partition and separate possession of the said property. Even if law permits, they can approach the Court of law for such relief.
36. Under the above said facts and circumstances, I answer the substantial question of law formulated in favour of the plaintiff and proceed to pass the following:
41
ORDER
1. The appeal is partly allowed.
2. The judgment and decree passed by the Trial Court in O.S.No.16/1993 by the learned Civil Judge (Jr.Dn.) Chittapur and First Appellate Court in R.A.No.9/2002 by the learned Civil Judge (Sr.Dn) Sedam in favour of the plaintiff, so far it is relates to declaring the plaintiff as absolute owner of the schedule property is here by set aside.
However, the judgment and decree passed by the Trial Court and the First Appellate Court in granting injunction in favour of the plaintiff, restraining the defendants from interfering with his possession and enjoyment of the property is concerned, is confirmed.
Accordingly, the appeal is disposed off.
Sd/-
JUDGE KJJ/snc