Karnataka High Court
Smt Shardi Bai vs Sri R T Dasya Naik on 25 March, 2014
Bench: N.Kumar, B.S.Indrakala
:1: RFA 1313/2007
IN THE HIGH COURT OF KARNATAKA, BANGALORE
DATED THIS THE 25TH DAY OF MARCH, 2014
PRESENT:
THE HON'BLE Mr.JUSTICE N.KUMAR
AND
THE HON'BLE Mrs.JUSTICE B.S.INDRAKALA
R.F.A. No.1313/2007 (Dec / Inj)
BETWEEN:
1. Smt SHARDI BAI
W/O MITTYA NAIK
AGED 69 YEARS
GHANTAPURA VILLAGE
TARAGANAHALLI POST
HONNALI TALUK,
DAVANAGERE DISTRICT - 577 217.
2. Sri MITTYA NAIK
S/O KRISHNA NAIK
AGED 74 YEARS
GHANTAPURA VILLAGE
TARAGANAHALLI POST
HONNALI TALUK
DAVANAGERE DISTRCIT - 577 217.
SINCE DEAD BY LRs:
(amended vide Court order
Dated 25.03.2014)
2(a) THOTYA NAIK,
S/O MITTYA NAIK,
AGED 54 YEARS.
:2: RFA 1313/2007
2(b) RAJA NAIK,
S/O MITTYA NAIK,
AGED 38 YEARS.
2(c) Smt LALITHA NAIK,
W/O KUBERA NAIK,
AGED 45 YEARS.
2(a) TO 2(c) ARE RESIDENTS OF
GHANTAPURA VILLAGE
TARAGANAHALLI POST
HONNALI TALUK
DAVANAGERE DISTRCIT - 577 217.
2(d) Smt MANJULA,
W/O SHANKAR CHAWAN,
AGED 36 YEARS,
R/AT GANGAJALA,
RANEBENNUR TALUK,
HAVERI DISTRICT.
2(e) Smt NETHRAVATHI,
W/O ANANDA NAIK,
AGED ABOUT 32 YEARS,
R/O ASHOK NAGAR, SHIMOGA.
2(f) Smt VEENA
W/O KRISHNA NAIK,
AGED ABOUT 30 YEARS,
R/O HAROBENAVALLI,
SHIMOGA TALUK AND DISTRICT.
... APPELLANTS
(By Sri.SHANMUKHAPPA, Adv.
FOR KESVY & CO.)
:3: RFA 1313/2007
AND:
1. SRI R T DASYA NAIK
S/O RAMA NAIK @ TOTYA NAIK
AGED 64 YEARS
BASAVAPATNA
CHANNAGIRI TALUK
DAVANAGERE DISTRICT - 577 217.
2. SRI R T KHERYA NAIK
S/O RAMA NAIK @ TOTYA NAIK
AGED 54 YEARS
CHANTAPURA VILLAGE
TARAGANAHALLI POST
HONNALI TALUK
DAVANAGERE DISTRICT - 577 217.
3. KAMALA NAIK
S/O RAMA NAIK @ TOTYA NAIK
AGED 52 YEARS
CHANTAPURA VILLAGE
TARAGANAHALLI POST
HONNALI TALUK
DAVANAGERE DISTRICT - 577 217.
4. SRI BHIMA NAIK
S/O RAMA NAIK @ TOTYA NAIK
AGED 50 YEARS
SRIRAMANAGAR
DAVANAGERE DISTRICT - 577 217.
... RESPONDENTS
(By Sri.S.V.PRAKASH, Adv.)
THIS RFA IS FILED U/S 96 R/W ORDER 41 RULE 1
TO 5 OF CPC AGAINST THE JUDGEMENT AND DECREE
DATED 28.03.2007 PASSED IN O.S.NO.103/05 ON THE
FILE OF THE CIVIL JUDGE (SR.DN.) HARIHAR,
:4: RFA 1313/2007
DECREEING THE SUIT FOR DECLARATION,
PERMANENT INJUNCTION ETC.
This appeal coming on for orders, this day,
N.KUMAR, J., delivered the following:
JUDGMENT
This is a defendants' appeal against the judgment and decree of the Trial Court which has decreed the suit of the plaintiff for declaration and injunction.
2. For the purpose of convenience, the parties are referred to as they are referred to in the original suit.
3. The case of the plaintiff is, one Sri.Kamalya Naik was the Propositus. He had two sons by name Sri.Krishna Naik and Sri.Rama Naik. The father of the plaintiffs late Rama Naik during his lifetime purchased the properties in Sy.No.60 measuring 05 acres 01 gunta and Sy.No.61 measuring 05 acres situate at Ghantapura Village, Honnali Taluk, :5: RFA 1313/2007 Davanagere District as per Order No.AD 54/1940-41 dated 13.03.1941. The properties, which he purchased are more particularly described in the schedule to the plaint and hereinafter referred to as the 'schedule property'. The father of the plaintiff was in actual possession and enjoyment of the suit properties as the absolute owner and mutation entries were effected in his name. The defendants are having no manner of right, title or interest muchless possession over the suit schedule properties. The plaintiffs are regularly remitting the land revenue in respect of the said land. Since the plaintiffs and their ancestors are illiterates and innocent villagers, it appears, they have not taken proper attention to have their names properly entered in the Revenue Records. Taking advantage of such ignorance, the revenue officials in collusion with the defendants mischievously manipulated the revenue entries in the name of the first defendant. The first defendant even :6: RFA 1313/2007 though is the daughter-in-law of Krishna Naik, the father of the second defendant, by mis-representing herself as the daughter-in-law of Rama Naik @ Totya Naik, the father of the plaintiffs got inserted her name in the revenue records in relation to the suit schedule properties as per illegal entries vide RRC No.110/1969-70. No notices were issued to the plaintiffs while effecting the revenue entries in the name of the first defendant and no enquiry was conducted as contemplated under the provisions of Karnataka Land Revenue Act. The entries were carried out surruptiously in her name behind the back of the plaintiffs On the date, these entries were made, the grandfather of the first defendant was alive not to mention defendant No.2 who was also alive. Even the husband of the first defendant was alive on the date, the entries were made. The said manipulated entries were continued till the year 2001. On coming to know of the said entries, the plaintiffs :7: RFA 1313/2007 immediately approached the Tahsildar, Honnali Taluk, Honalli and submitted representation for rectification of revenue records and to effect their names in the revenue records in relation to suit schedule properties. The Tahsildar dismissed their application. Therefore, they preferred an appeal in R.A.No.92/201- 02 before the Assistant Commissioner, Sub-Division, Davanagere. The Assistant Commissioner also dismissed the said appeal by his order dated 22.05.2002. Against the said order, they preferred an appeal before the Deputy Commissioner, Davanagere District which also came to be dismissed. The defendants are very influential and rich persons having more than 40 acres of agricultural lands besides one of the sons of the second defendant is a top class Government official, and as such they have been bent upon dis-possessing the plaintiff to make wrongful gain taking undue advantage of erroneous and cryptic orders passed by the revenue authorities. :8: RFA 1313/2007 Since the revenue authorities held the case against the plaintiffs, they are constrained to file the suit as contemplated under Section 135 of the Karnataka land Revenue Act. Therefore, they sought for a declaration that the plaintiffs are the absolute owners in actual possession and enjoyment of the suit schedule property and defendants have no manner of rights, title and interest muchless possession over the same. They also sought for decree of permanent injunction.
4. After service of summons, the defendants entered appearance. They filed a detailed written statement. They admitted the relationship as set out in the plaint but they contend that Kamalya Naik had two daughters by name Somli Bai and Latchi Bai. They contended that the allegation that Rama Naik @ Totya Naik purchased the suit schedule properties vide order No.AP54/1940-41 is incorrect. They :9: RFA 1313/2007 traversed each and every paragraph in the plaint and denied the same.
At Paragraph No.13, they have set out their case. Their specific case is because as per mutation entries in RRC No.110/1969-70, these defendants have come in possession of the suit lands. The said order is effected on 21.10.1969. The plaintiffs ought to have filed the suit for declaration of their title within three years of the said order but the present suit filed after 3½ decades is barred by law of limitation. In the course of revenue disputes before the Revenue Courts i.e., before the Tahsildar, Honnalli before the Deputy Commissioner, Davanagere and before the Deputy Commissioner, Davanagere, the contentions of the plaintiffs are negatived. Having become unsuccessful before the revenue forms, the plaintiffs have come forward before this Court to harass the defendants. From the entries in the : 10 : RFA 1313/2007 revenue records it is crystal clear that the possession of suit lands is lost during 1969 itself.
They contend that Rama Naik @ Totya Naik, the father of plaintiffs lost all his properties during his lifetime during 1940. Even he had not paid land revenue of his lands. Krishna Naik's wife - Devalibai was from Neelvani Village of Honnalli Taluk. Her parents had gifted her two she-goats after her marriage. She reared and developed the she-goats for about 10 years. Since the land revenue was not paid, the said land was about to be brought to public auction Smt.Devlibai, Wife of Krishna Naik sold her she-goats and paid the entire arrears of land revenue due from the suit lands. The revenue authorities instead of putting the lands for public auction got changed the mutation in the name of the present defendant No.1 at the instance of Devlibai, the mother-in-law. Thus on 21.10.1969, RRC 110/1969- 70 came to be entered in the name of the defendant : 11 : RFA 1313/2007 to the knowledge of the plaintiffs and their ancestors and since then the defendants have been enjoying the suit schedule properties by paying Khandayam to suit lands and cultivating personally. Hence, the defendants are the owners in lawful possession of the suit schedule properties alternatively these defendants pleaded adverse possession. On 21.10.1969, as per Mutation Order No.RRC 110/1969-70, these defendants have come in possession of the suit lands and thereafter continue to enjoy the suit lands openly and uninterruptedly to the knowledge of the plaintiffs till today, and thereby these defendants have perfected their title to the suit lands by being in possession adversely to the interest of plaintiffs. Thus, the defendants are the owners of the suit schedule lands by adverse possession also. Therefore, the plaintiffs without seeking for the possession have preferred the suit, which is not maintainable.
: 12 : RFA 1313/2007
5. On the aforesaid pleadings and the rival contentions, the Trial Court has framed the following issues:
i) Whether plaintiffs prove the geneology?
ii) Whether plaintiffs prove that late Rama Naika @ Thotya Naika during his lifetime purchased the suit properties and after his death they are in possession and enjoyment of the same?
iii) Whether plaintiffs prove the cause of action?
iv) Whether plaintiffs prove that the defendants in collusion with revenue officials have got entered their names illegally and as such it is not binding on them?
v) Whether defendants prove that the suit is barred by time as pleaded in Para 13(a) of written statement?
vi) Whether defendants prove that Devli Bai W/o Krishna Naik is the owner of the suit properties?
vii) Whether the suit is not maintainable without seeking the relief of possession?
viii) Whether plaintiffs are entitled for the reliefs as prayed for?
ix) What order or decree?: 13 : RFA 1313/2007
6. The plaintiffs in support of this case examined the second plaintiff Sri.R.T.Kheerya Naik as PW-1 and one Sri.Gurumurthy, Tahsildar, Honnali as PW-2. They produced nine documents which are marked as Exs.P1 to P9. On behalf of the defendants, Smt.Sharadi Bai and Meetya Naik are examined as DWs - 1 & 2. Smt.Somli Bai, relative of the first defendant is examined as DW-3 and Sri.Chandra Naik was examined as DW-4 and got marked 30 documents as Exs.D1 to D30.
7. The Trial Court on consideration of the aforesaid oral and documentary evidence on record held the plaintiffs have proved that late Rama Naika during his lifetime purchased the suit properties and after his death, they are in possession and enjoyment of the same. Further, plaintiffs also established that the defendants in collusion with the revenue officials have got entered their names illegally. The defendants : 14 : RFA 1313/2007 have failed to prove that the suit is barred by time as pleaded in Paragraph No.13 of the written statement.
They have also failed to prove that Devli Bai, wife of Krishna Naik is the owner of the suit properties. They have failed to show that the suit is not maintainable without seeking the relief of possession and therefore, it decreed the suit of the plaintiffs as prayed for. Aggrieved by the said judgment and decree of the Trial Court, the defendants are in appeal.
8. Learned counsel for the appellants/ defendants assailing the impugned order contended the suit is one for declaration of title. Plaintiffs claim title under a Government Order. The said title deed is not produced and therefore, the Trial Court committed a serious error in granting a declaration as sought for. Further, he contended that from the year 1969-70, the mutation entries stand in the name of the first defendant. It shows that the first defendant is in : 15 : RFA 1313/2007 possession of the property since then. Further, from 2001 onwards, the proceedings were initiated by the plaintiffs for rectification of the pahanis where the title of the plaintiffs was denied and therefore, suit ought to have been filed within three years from the date of denial of the title and the suit is barred by time. Thirdly, it was contended that the plaintiffs have not produced any material to show that they are in possession of the properties. Therefore, the suit for mere declaration without seeking the relief of possession is not maintainable. The Trial Court has not properly considered these aspects. Lastly, it was contended that mutation entries would clearly show that defendants are in possession of the properties since 1969 onwards, for more than 3½ decades. Therefore, they have perfected their title by adverse possession and therefore, he submits that since they are in possession of the properties, the judgment and : 16 : RFA 1313/2007 decree of the Trial Court cannot be sustained and plaintiffs suit is to be dismissed.
9. Per contra, learned counsel appearing for the plaintiffs / respondents submit that the title of Rama Naik for the suit properties is not in dispute. Plaintiffs are the children of Rama Naik. After his death, plaintiffs became the owners of the suit properties. Defendants in their written statement have specifically pleaded that because Rama Naik did not pay land revenue and the properties were about to be brought to sale, the mother of the first defendant paid the arrears of land revenue and subsequently requested the name of the first defendant to be entered. This undisputed material on record shows that Rama Naik is the owner and after his death, plaintiffs and his children became the owners and therefore, the finding recorded by the Trial Court for declaration cannot be found fault with. : 17 : RFA 1313/2007
10. In the proceedings before the Revenue Court, the mutation entries being made in the name of the first defendant on the death of Rama Naik. The title was never in dispute and it was never denied and therefore, the suit filed by the plaintiffs for declaration is in time and rightly, the Trial Court has held that it is not barred by limitation. He contends that plaintiffs are in possession of the properties even to this date. Therefore, he did not seek the relief of possession, which case has been accepted by the Trial Court. Therefore, the contention that the suit is filed without seeking the relief of possession is not maintainable and is without any substance. The mutation entries on the face of it shows that it is illegal. The presumption of possession under Section 133 of the Karnataka Land Revenue Act is violated only when the mutation entry is made after following the procedure prescribed under the Land Revenue Act. In the absence of showing the interest in the : 18 : RFA 1313/2007 properties and the procedure not being followed, the defendants are not entitled to any presumption under Section 133 of the Act. The defendants are claiming title to the property by survivorship and claiming title through mutation entries, then their entry into the land cannot be said to be adverse to the interest of the plaintiffs. They are claiming title by virtue of the mutation entries in a lawful manner. Therefore, the plea of adverse possession set out is contrary to the material on record and rightly, the Trial Court declined to entertain the suit of the plaintiffs and therefore, he submits that the judgment and decree of the Trial Court cannot be found fault with.
11. In the light of the aforesaid pleadings and rival contentions, the points that arise for our consideration in this appeal are:
i) Whether the Trial Court was justified in granting declaration of title in favour of the : 19 : RFA 1313/2007 plaintiffs without title deeds being produced before the Trial Court?
ii) Whether the suit is barred by law of
limitation?
iii) Whether the decree for declaration is valid
without relief for possession is not sought for?
iv) Whether the defendants have perfected the title by adverse possession?
12. Point No.1: The plaintiffs in the plaint has specifically pleaded that their father Rama Naik @ Thotya Naik during his lifetime purchased the schedule properties as per order No.ADA 54/1940-41 dated 13.03.1941. After purchase, the mutation entries were made in his name. He was in actual possession of the suit properties as absolute owner. After his death, plaintiffs are in peaceful possession and enjoyment of the suit properties. The defendant in Paragraph No.4 of the written statement has : 20 : RFA 1313/2007 pleaded that the averments made in Paragraph No.4 of the plaint that the father of the plaintiffs late Rama Naik @ Thotya Naik during his lifetime purchase the suit schedule lands vide Order No. ADA 54/1940-41 dated 13.03.1941 is incorrect for the reasons narrated below. They have not denied the title of Rama Naik specifically. They say the said statement is incorrect for the reasons stated above. The said narration is found in Paragraph No.13. In sub-para (c) of Paragraph No.13, the specific stand taken by the defendant is, Thotya Naik is the father of plaintiffs who lost all his properties during his lifetime during 1940, even he had not paid land revenue of his lands. Krishna Naik's wife Devlibai was from Neelvani village of Honnali Taluk. Her parents had gifted two she- goats after her marriage. She reared and developed the she-goats for 10 years. Since the land revenue was not paid, the suit land was about to be brought for sale in public auction. So, Devlibai, wife of : 21 : RFA 1313/2007 Krishna Naik sold her She-goats and paid the entire arrears of land revenue of the suit lands and the revenue authorities instead of putting the lands for public auction, got changed the mutation in the name of present defendant No.1 at the instance of Devlibai, the mother-in-law. Thus, on 21.10.19969 RRC 110/69-70 came to be entered in the name of first defendant to the knowledge of the plaintiffs and their ancestors and since then the defendants have been enjoying the suit schedule properties by paying kandayam to suit lands and cultivating personally.
Therefore, it is clear, a reading of the entire Para makes it clear the suit land belongs to Rama Naik @ Thotya Naik. He had not paid the land revenue. The revenue authorities were about to bring the land for public auction to collect the land revenue. At that stage, the mother-in-law of the first defendant paid the land revenue and thus, requested to mutate the land in the name of the first defendant. The said : 22 : RFA 1313/2007 mutation entry is produced as Ex.P5 by the plaintiff and Ex.D8 by the defendants. A reading of the said orders shows that khatha of the schedule lands have been made in the name of Smt.Sharadi Bai, wife of Sri.Meetya naik, who is the wife of the son of the deceased Rama Naik @ Thotya naik. In the said order, there is no mention about the mother-in-law of the first defendant paying any land revenue to the Government and thereafter requesting the authorities to mutate the name in the name of the first defendant. The name of the first defendants is mutated treating her as Rama Naik's son's wife. Therefore, the right that the defendants are claiming flows from Rama Naik. This undisputed material on record clearly shows Rama Naik was the owner of the property. The mutation entries stood in his name. He lost all the properties. He was unable to pay the land revenue. The schedule property was about to be brought to sale for recovery of land revenue. At that stage, the : 23 : RFA 1313/2007 mother-in-law of the first defendant paid the land revenue and prevented the property to be sold in public auction. Therefore, the title of Rama Naik to the schedule property is not in dispute at all and that title flows from an order passed by the Government conferring title on him in a public auction. In so far as non-production of the said order, it is the title deed, in this case, the plaintiffs have examined one Sri.Gurumurthy as PW-2. He produced the mutation register of Ghantapura. After looking into the said document, he deposed that for Sy.Nos.61 & 61, the owner is Rama Naik @ Thotya Naik. After referring to Ex.P8, he has stated in the said order, it is not mentioned that the property was brought to sale for non-payment of land revenue. He also deposed that when the present khathedar dies within a year, an application is to be made for mutating the name. After an application is filed beyond one year, he has to pay fine. After receipt of such an application, the : 24 : RFA 1313/2007 Village Accountant has to submit a report in Form No.12. Thereafter, in Form No.21, public notice would be published in the Taluk Office and notice would be sent to the concerned. Thereafter, the Village Accountant would request them to produce the death certificate and the geneology family history. If no objection is received within 30 days and the mutation order will be passed. In the cross-examination, all that has been elicited is the mutation entries in respect of the suit properties are made in accordance with law.
13. Ex.P9 is a letter addressed by the Tahsildar to the Joint Municipal Office of the Civil Court (Sr.Dn.) in reply to the summons issued to him to produce the documents. It is stated in respect of the schedule property, the only document which is available in the office is mutation and that has been produced. It is on consideration of the aforesaid material, the Trial : 25 : RFA 1313/2007 Court has held the aforesaid material on record clearly establishes the title of the plaintiffs over the suit properties, their father having acquired the same by way of order of the Government dated 13.03.1941. Merely because, the said original order is not produced would not mean that there is no title deed in favour of the plaintiff's father. It is a case where a title deed was issued by the Government in favour of the plaintiff's father and the said title deeds are not available. The title of the plaintiffs and their father flows from the said Government order. As set out above, all that the defendant states is that addressing of the document is incorrect, for the reasons narrated below and therefore, he is in categorical terms has admitted that these properties belongs to Rama Naik @ Thotya Naik and because of his inability to pay land revenue, property was brought to sale and the mother-in-law of the first defendant having paid the land revenue and saved the property. By mere : 26 : RFA 1313/2007 payment of land revenue or getting the khatha made out in the name of the first defendant, the title of Rama Naik is not extinguished. On the contrary, Ex.P8 shows khatha was made in the name of Rama Naik. On his death, the name of the first defendant is to be entered. It is not a case where the plaintiffs are claiming the title to the property on the basis of the mutation entry or the khatha endorsement or tax paid receipts. The title is based on a grant order and the endorsement which is not in dispute. The source of the title to both the plaintiffs and defendants is one and the same. Therefore, in the facts of the case, we are satisfied with the finding recorded by the Trial Court that the plaintiff has the title over the suit properties and cannot be found fault with.
14. Point No.2: The suit for declaration of title is to be filed within three years when the right to sue first accrues. Article 58 is the relevant article. : 27 : RFA 1313/2007 The right to sue first accrues when the title of the parties seeking for declaration is denied. In the instant case, from 1969 upto 2001, when the mutation entry was made in the name of the first defendant, there was no dispute at all. The dispute arose for the first time in the year 2001 when an application is given by the plaintiffs to cancel the mutation entry in the name of the first defendant and to make the mutation entry in their name. The said request was rejected by the Tahsildar on 22.05.200. The appeal preferred against the same before the Assistant Commissioner came to be dismissed on 31.07.004. The revision petition preferred before the Deputy Commissioner came to be dismissed on 9.08.005. The suit for declaration is filed on 16.09.005.
15. Section 135 of the Karnataka Land Revenue Act reads as under:
: 28 : RFA 1313/2007
"135: No suit shall lie against the State Government or any officer of the State Government in respect of a claim to have an entry made in any record or register that is maintained under this Chapter or to have any such entry omitted or amended.
Provided that if any person is aggrieved as to any right of which he is in possession, by an entry made in any record or register maintained under this Chapter, he may institute a suit against any person denying or interested to deny his title to such right, for a declaration of his right under Chapter VI of the Specific Relief Act, 1877; and the entry in the record or register shall be amended in accordance with any such declaration".
Section 34 of the Specific Relief Act, 1963 provides that any person entitled to any legal character, or to any right as to any property, may institute a suit against any person denying, or interested to deny, his title to such character or right, and the Court may in its discretion make therein a declaration that he is so entitled, and the plaintiff need not in such suit ask for any further relief. : 29 : RFA 1313/2007
Therefore, it is clear that in Ex.P8 on which the defendants relies on, there is a clear recital that the property belongs to Rama Naik. Mutation entry in the name of the first defendant was made on the assumption that she is the wife of his son. Therefore, title was not in dispute. It is only when an attempt on the part of the plaintiffs to get the mutation entries corrected failed, it is necessary for them to seek a declaration of title in view of Section 135 of the Karnataka Land Revenue Act. In order to get their names entered in the mutation register and therefore, the suit filed on 16.09.2005 for declaration is in time and the Court below was justified in holding that the suit is not barred by law of limitation.
16. Point No.3: If the plaintiff is not in possession of the land on the day he seeks a relief of declaration or he looses possession after the suit is filed before the decree is passed, the proviso to : 30 : RFA 1313/2007 Section 34 of the Specific Relief Act mandates that no Court shall make any such declaration where the plaintiff, being able to seek further relief than a mere declaration of title, omits to do so. Therefore, a declaration of title cannot be granted in favour of the plaintiff who is not in possession of the property. If a person is in possession and his title is denied, it is not necessary for him to seek the relief of possession merely because he has come to Court seeking for declaration. Therefore, the question that would arise for consideration in this case is who was in possession of the land on the date, the suit was filed?
17. In order to substantiate the contention that the defendant is in possession of the land, mutation entries and entries in the RTC was relied upon and then, Section 133 of the Karnataka Land Revenue Act was pressed into service, where there is a initial presumption in favour of the person in whose name : 31 : RFA 1313/2007 the mutation entires are made but it is a rebuttal presumption.
Section 133 of the Karnataka Land Revenue Act reads as under:
133 : Presumption regarding entries in the records:
An entry in the Record of Rights and a certified entry in the Register of Mutations [or in the patta book] shall be presumed to be true until the contrary is proved or a new entry is lawfully substituted therefore.
Section 129 of the KLR Act deals with and registering of mutations and register of disputed cases, which reads as under:
(1) The prescribed officer shall enter in the Register of Mutations every report made to him under sub-section (1) of sub-section 128 or received by him under sub-section (2) or sub-section (4) of the said section.
Section 128 reads as under:
128 : Acquisitions of rights to be reported: (1) Any person acquiring by : 32 : RFA 1313/2007 succession, survivorship, inheritance, partition, purchase, mortgage, gift, lease or otherwise, any right as holder, occupant, owner mortgagee, landlord or tenant of the land or assignee of the rent or revenue thereof, shall report orally or in writing his acquisition of such right to the prescribed officer of the village within three months from the date of such acquisition, and the said officer shall at once give a written acknowledgement of the receipt of the report to the person making it.
Therefore, acquisition of a right in any one of the manner prescribed under Section 128 is a condition precedent for the prescribed officer entering the name of such person in the register of mutations. If a person has not acquired any right and such persons name is entered in the mutation register, then such entry would not carry any presumption under Section
133. It is only an entry as prescribed under Section 128 one read with Section 129(1) carries a : 33 : RFA 1313/2007 presumption of the person whose name the entry is made being in possession. The said presumption is rebuttable. In the instant case, the entire case of the defendant is depending on Ex.P8.
Ex.P8 shows the properties stood in the name of Rama Naik. He is dead and therefore, the khatha can be made out in the name of his Class-I heirs who succeed to his estate. First defendant name was entered as the wife of the son of Rama Naik. When the son was very much alive, his wife would acquire no right to the properties. Therefore, such an entry would be illegal and contrary to Section 128(1) of the Act because the wife of the son do not acquire any right in the properties of her father-in-law.
But in the instant case, it is a incorrect statement made which is admitted by the defendant in the oral evidence. First defendant is not the wife of the son of Rama Naik. First defendant is the wife of son of the brother of Rama Naik and therefore, under : 34 : RFA 1313/2007 no circumstances she would acquire any right in the property of Rama Naik. Therefore, the contention of the plaintiffs that the first defendant and the second defendant in collusion with the Government officials clandestinely behind the back of the plaintiffs got this mutation entry made is fully substantiated by the material available in the order itself. If an entry is made in favour of a person who had not acquired any interest in the property, that entry cannot be relied upon as proof of possession of the property. Admittedly, Rama Naik was the Khathedar. It is he who was the owner of the property and after his death, it is his sons who are the plaintiffs of this case who are entitled to the mutation entry in this case. Because of poverty and illiteracy, they have not taken any steps to get the mutation entries in their name. Their right to the property is not extinguished. In the absence of any acceptable positive evidence to show that the defendants are in possession of the property, : 35 : RFA 1313/2007 the presumption is, owner continues to be in possession. Therefore, all the records produced by the defendants are made on the basis of Ex.P8 which is shown to be illegal. Those documents would not prove that the defendants are in possession of the properties either on the date of filing of the suit or before filing of the suit. Rama Naik is the owner of the property in whose name mutation entries was made, who was cultivating the land till his death. After his death, his wife and his children would be entitled to the said property who is deemed to be in possession of the schedule property. Therefore, the argument that the suit filed without seeking the relief of possession for mere declaration is not maintainable cannot be upheld. For the same reason, when the defendant has not shown to be in possession of the property, his plea that he has perfected his title by adverse possession also falls to ground. Even otherwise, the origin of the possession of the defendants is in Ex.P8. : 36 : RFA 1313/2007 At the inception, there was no adverse interest in getting into possession. The first defendant is deemed to be in possession lawfully and they continues to be in lawful possession and therefore, it does not become adverse possession at all at any point of time. Therefore, the Trial Court has rightly held that the defendants have failed to prove the adverse possession also. In that view of the matter, we do not se any merits in the appeal. Accordingly, appeal is dismissed.
Sd/-
JUDGE Sd/-
JUDGE dh*