Karnataka High Court
Smt Chandamma And Ors vs Sri Duragamma on 23 January, 2024
-1-
NC: 2024:KHC-K:937
RSA No. 200176 of 2018
IN THE HIGH COURT OF KARNATAKA,
KALABURAGI BENCH
DATED THIS THE 23RD DAY OF JANUARY, 2024
BEFORE
THE HON'BLE MR. JUSTICE E.S.INDIRESH
REGULAR SECOND APPEAL NO. 200176 OF 2018 (DEC)
BETWEEN:
1. SMT.CHANDAMMA
W/O LATE RANGAPPA,
AGE: 61 YEARS, OCC:AGRICULTURE,
R/O DONIMARADI VILLAGE, TQ.MANVI,
DIST:RAICHUR,
NOW RESIDING AT PESALABANDI CAMP,
SANGAPUR, TQ:MANVI,
DIST:RAICHUR.
2. SHRI. SHIVARAJ S/O LATE RANGAPPA,
AGE:35 YEARS, OCC:AGRICULTURE,
R/O MANVI, DIST:RAICHUR.
Digitally
signed by
SACHIN
3. SHRI. SHIVABASAMMA S/O LATE RANGAPPA
Location: AGE:30 YEARS, OCC:AGRICULTURE,
HIGH COURT
OF R/O MANVI, DIST.RAICHUR.
KARNATAKA
ALL ARE RESIDENT OF
R/O DONIMARADGI VILLAGE, TQ.MANVI,
DIST.RAICHUR,
NOW RESIDING AT PESALABANDI CAMP,
SANGAPUR,
TQ:MANVI, DIST:RAICHUR.
...APPELLANTS
(BY SRI. MAHANTESH PATIL, ADVOCATE)
-2-
NC: 2024:KHC-K:937
RSA No. 200176 of 2018
AND:
SRI. DURAGAMMA
W/O AYYAPPA,
AGE:60 YEARS,
OCC:HOUSEHOLD & AGRICULTURE,
R/O DONIMARADI VILLAGE,
TQ.MANVI, DIST:RAICHUR-584101.
...RESPONDENT
(BY SRI. NAGARAJ PATIL, ADVOCATE)
THIS RSA IS FILED UNDER SECTION 100 OF CPC,
PARYINT TO SET ASIDE JUDGMENT AND DECREE DATED
19.01.2018 PASSED BY THE SENIOR CIVIL JUDGE AND JMFC
SINDHANUR, SITTING AT MANVI, IN REGULAR APPEAL
NO.57/2014 (OLD NO.79/2013) THE JUDGEMENT AND DECREE
DATED-09.10.2013, PASSED BY THE CIVIL JUDGE & JMFC AT
MANVI, IN O.S.NO.18/2012 ETC.
THIS APPEAL, COMING ON FOR ADMISSION, THIS DAY,
THE COURT DELIVERED THE FOLLOWING:
JUDGMENT
1. This appeal is filed by the plaintiffs challenging the judgment and decree dated 19.01.2018 passed in RA.No.57 of 2014 (old RA No.79 of 2013) on the file of the Senior Civil Judge and JMFC, Sindhanur sitting at Manvi, dismissing the appeal and confirming the judgment and decree dated 09.10.2013 passed in OS.No.18 of 2012 on -3- NC: 2024:KHC-K:937 RSA No. 200176 of 2018 the file of the Civil Judge and JMFC, Manvi, dismissing the suit of the plaintiffs.
2. For the sake of convenience, the parties in this appeal shall be referred to in terms of their status and ranking before the trial Court.
3. The plaint averments are that the suit schedule property is belonged to Hanumappa son of Rangappa (great-grand-father of plaintiff Nos. 2 and 3). The said Hanumappa had a son by name Nagappa and the said Nagappa died leaving behind two children Krishnappa and Rangappa. Plaintiff No.1 is the wife of Rangappa and plaintiff Nos. 2 and 3 are the children of said Rangappa. It is the case of the plaintiffs that, Krishnappa and Rangappa had divided the properties and therefore, the plaintiff has not arrayed Krishnappa as a party in the suit. It is stated in the plaint that RTC extracts maintained by the revenue authorities stands in the name of plaintiffs, however, the defendant is claiming right over the property in question -4- NC: 2024:KHC-K:937 RSA No. 200176 of 2018 and accordingly, the plaintiffs have filed OS No.18 of 2012 on the file Trial Court seeking relief of declaration with consequential relief of injunction.
4. After service of summons, defendant entered appearance however, failed to file written statement.
5. On the basis of the pleadings, the trial Court has formulated issues for its consideration.
6. In order to establish their case, plaintiffs examined three witnesses as PW1 to PW3 and got marked 12 documents as Exs.P1 to P12. On the other hand, no evidence was adduced on behalf of defendant.
7. The trial Court, after considering the material on record, by its judgment and decree dated 09.10.2013 dismissed the suit of the plaintiffs and being aggrieved by the same, the plaintiffs have preferred Regular Appeal in RA.No.57 of 2014 on the file of First Appellate Court. The First Appellate Court, after re-appreciating the facts on record, by its judgment and decree dated 19.01.2018 -5- NC: 2024:KHC-K:937 RSA No. 200176 of 2018 dismissed the appeal and confirmed the judgment and decree passed by the trial Court in OS.No.18 of 2012. Being aggrieved same, the appellants/plaintiffs have preferred this Regular Second Appeal under Section 100 of CPC.
8. Heard Sri Mahantesh Patil, learned counsel appearing for the appellants and Sri Nagaraj Patil, learned counsel appearing for the respondent and perused the material on record.
9. Sri Mahantesh Patil, learned counsel for the appellants argued that, the plaintiffs have produced 12 documents particularly by referring to Ex.P7, which is a Kasara register evidencing the title of the plaintiffs and the said aspect has not been considered by the courts below. To buttress his arguments learned counsel appearing for the appellant places reliance on the judgment of the Hon'ble Supreme Court in the case of Jt. Collector Ranga Reddy Dist. & Anr. Vs. D. Narsing Rao & Ors reported -6- NC: 2024:KHC-K:937 RSA No. 200176 of 2018 in (2015) 3 SCC 695 and argued that the Kasara Register is to serve the purpose as a deed of title, when there is no title. Accordingly, he sought for interference of this court.
10. Sri Nagaraj Patil, learned counsel for the respondents sought to justify the impugned judgment and decree passed by the courts below.
11. On careful perusal examination of the finding recorded by the both the Courts below and the perusal of the original records would indicate that the plaintiffs' claim right over the property based on the mutation entry in the revenue records. Since it is suit for declaration claimed by the plaintiffs, it is the duty of the plaintiffs to prove their case by producing cogent documents of title to establish that the plaintiffs are the title holders in respect of the suit schedule property. In this regard, the judgment of this Court in the case of Hullapa vs. State of Karnataka and -7- NC: 2024:KHC-K:937 RSA No. 200176 of 2018 others reported in ILR 2012 KAR 4958 paragraphs 14 to 18 reads as under:
"14. A reading of the entire paragraph makes it clear that the defendants have put the plaintiff to strict proof of his assertion that plaintiff is the owner. Now the plaintiff has produced seven documents. None of the said documents are document of title. It is settled law that in a suit for declaration of title, unless the plaintiff produces the document of title, the Civil Court cannot grant declaration on the basis of the record of rights, tax paid receipts or some communication or letters. This fundamental principles of law has not been kept in mind by the Trial Court. In this context it is necessary to restate the law on this point.
15.The Apex Court in the case of STATE OF H.P. vs KESHAV RAM AND OTHERS', has held as under; "In view of the rival contentions, the question that arises for consideration is whether the plaintiffs have been able to establish their title and the Courts below were justified in declaring plaintiffs title. As has been stated earlier the only piece of evidence on which the Courts below relied upon to decree the plaintiffs' suit is the alleged order made by the Assistant Settlement Officer directing correction of the record of right. The order in question is not there on record but the plaintiffs relied upon the register where the correction appears to have been given effect to. The question, therefore, arises as to somebody's name could create -8- NC: 2024:KHC-K:937 RSA No. 200176 of 2018 or extinguish title in favour of the concerned? It is to be seen that the disputed land originally stood recorded in the name of Raja Sahib of Keonthal and thereafter the State was recorded to be the owner of the land in the record of right prepared in the year 1949-50. In the absence of the very order of the Assistant Settlement Officer directing necessary correction to be made in favour of the plaintiffs, it it not possible to visualize on what basis the aforesaid direction had been made. But at any rate such an entry in the Revenue papers by no stretch of imagination can form the basis for declaration of title in favour of the plaintiffs. To our query as to whether there is any other document on the basis of which the plaintiffs can claim title over the disputed land, the Learned Counsel for the plaintiffs- respondents could not point out any other document apart form all alleged correction made in the register pursuant to the order of the Assistant Settlement Officer. In our considered opinion, the Courts below committed serious error of law in declaring plaintiff's title on the basis of the aforesaid order of correction and the consequential entry in the Revenue Papers."
16. Again the Apex Court in the case of NARAIN PRASAD AGGARWAL vs. STATE OF MADHYA PRADESH, at paragraph 19 held as under:
"19. Record-of-right is not a document of title. Entries made therein in terms of Section 35 of the Evidence Act although are admissible as a relevant piece of -9- NC: 2024:KHC-K:937 RSA No. 200176 of 2018 evidence and although the same may also carry a presumption of correctness, but it beyond any doubt or dispute that such a presumption in rebuttable. Exhibit P-4 and Exhibit P-6 whereupon reliance has been placed by the Learned Trial Judge to hold that the State had title over the property in question, were documents of year 1920-21, but failed to notice that the documents must have been taken into consideration and/or would be presumed to have been taken into consideration by the Settlement Commissioner when the aforementioned Order dated 30-1-1992 (Exhibit P-
3) was passed wherein it had categorically been held that no deed of lease having been executed in respect of the land in question, the title of the said Putri Sethani should be deemed to be a permanent lessee."
17. Again the Apex Court in the case of GURUNATH MANOHAR PAVASKAR AND OTHERS vs. NAGESH SIDDAPPA NAVALGUND AND OTHERS, at paragraph 12 has held as under:
"12. A revenue record is not a document of title. It merely raises a presumption in regard to possession. Presumption of possession and/or continuity thereof both forward and backward can also be raised under Section 110 of the Evidence Act. The Courts below were, therefore, required to appreciate the evidence keeping in view the correct legal principles in mind."
18. Therefore it is clear that mutation entries and the records evidencing the same are not document of title.
- 10 -
NC: 2024:KHC-K:937 RSA No. 200176 of 2018 In other words, the revenue record is not a document of title. Mutation being only for fiscal purpose of collection of land revenue from the person in whose name the revenue record stands. The guiding factor in recording mutation is to show who is in possession. If the mutation entry is made in accordance with law, there is a presumption in favour of the person in whose name the mutation entry stands to the effect that he is in possession of the said property. That by itself is not sufficient to hold that he is the owner of the property. It is not proof of title. Therefore, the Civil Courts cannot declare title in a person on the basis of the aforesaid entries in the revenue records or on the basis of the revenue records. This is the settled legal position."
12. Though the learned counsel appearing for the appellants made an attempt to prove that the documents by referring to Kasara Register, evidencing the title and in this regard, paragraph 13 of the judgment in D.Narasing Rao supra reads as under:
13. Consequent to the merger of Hyderabad State with Indian in 1948 the Jagirs were abolished by the Andhra Pradesh (Telangana Area) (Abolition of Jagirs) Regularation, 1358 Fasli. "Khasra pahani" is the basic record- of -rights prepared by the Board of Revenue Andhra Pradesh in the year 1954-1955. It was gazetted under Regulation 4 of the A.P. (Telangana Area)
- 11 -
NC: 2024:KHC-K:937 RSA No. 200176 of 2018 Record-of- Rights in Land Regulation, 1358 F. As per Regulation 13 any entry in the said record-of-rights shall be presumed to be true until the contrary is proved. The said regulation of 1358 F was in vogue till it was repealed by the A.P. Rights in Land and Pattadar Pass Books Act, 1971, which came into force on 15-8- 1978. In the 2nd Edn, (1997) of the Law Lexicon by P. Ramanatha Aiyar (at p.1053) "Khasra" is described as follows:
"Khasra.- Khasra is a register recording the incidents of a tenure and is a historical record. Khasra would serve the purpose of a deed of title, when there is no other title deed."
13. Undisputedly, no other documents are produced by the plaintiffs except revenue documents, where it is not a Kasara document and only the certified copy of the mutation register. In that view of the matter, the mutation being only for fiscal purpose of collection of land revenue and same cannot be a basis to declare that plaintiffs are owners of the land in question and in view of the declaration of law made by the Hon'ble Supreme Court in the case of Smt. Bhimabai Mahadeo Kambekar (D) Th. LR vs. Arthur Import and Export Company and others reported in 2019 (3) SCC 191, I am of the
- 12 -
NC: 2024:KHC-K:937 RSA No. 200176 of 2018 opinion the plaintiffs have not made out case for interference. It is also well established principle in law that, weakness of defendant cannot be a basis to decree the suit of the plaintiff unless the plaintiff has made out a case with cogent documents. (See. AIR 1998 SC 2352 and (2020) 7 SCC 275). In that view of the matter, appellant/plaintiffs have not made out case for interference. Therefore, I do not find material irregularity or perversity in the judgments and decree passed by the Courts below and accordingly, the Regular Second Appeal is liable to be dismissed. Since, the plaintiff/appellants have not made out grounds for formulation of substantial question of law as required under Section 100 of Code of Civil Procedure, Regular Second Appeal is dismissed at the Admission stage itself.
Sd/-
JUDGE SB List No.: 1 Sl No.: 27