Karnataka High Court
Sridevi vs Rajkumar S/O Shivsharnappa Hegge on 11 July, 2024
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RFA No.200107 of 2018
IN THE HIGH COURT OF KARNATAKA,
KALABURAGI BENCH
DATED THIS THE 11TH DAY OF JULY, 2024
PRESENT
THE HON'BLE MR. JUSTICE ASHOK S. KINAGI
AND
THE HON'BLE MR. JUSTICE RAJESH RAI K
REGULAR FIRST APPEAL NO.200107 OF 2018 (DEC)
BETWEEN:
SRIDEVI W/O RUDRAPPA PATIL,
AGED ABOUT 55 YEAS,
OCC: AGRICULTURE AND HOUSE HOLD,
RESIDENT OF VILLAGE GUMMA,
NOW AT H.NO.7-1-77, NEAR RAM MANDIR,
BIDAR - 585 401.
...APPELLANT
(BY SRI HANMANTHRAYA SINDOL, ADVOCATE)
AND:
Digitally signed by RAJKUMAR S/O SHIVSHARNAPPA HEGGE,
BASALINGAPPA AGED ABOUT 48 YEARS, OCC: AGRICULTURE,
SHIVARAJ
DHUTTARGAON RESIDENT OF VILLAGE MARKHAL,
Location: HIGH TQ: AND DIST: BIDAR,
COURT OF
KARNATAKA NOW RESIDING AT H.NO.9-8-489/1,
NEAR GAIKWAD OFFICE,
BASAVA NAGAR, BIDAR - 585 403.
...RESPONDENT
(BY SRI DEEPAK V.BARAD, ADVOCATE)
THIS REGULAR FIRST APPEAL IS FILED UNDER SECTION 96 OF
CPC, PRAYING TO ALLOW THE APPEAL BY SETTING ASIDE THE
JUDGMENT AND DECREE DATED 3RD OCTOBER 2017, PASSED IN
O.S.NO.115/2015 BY THE LEARNED ADDITIONAL SENIOR CIVIL
JUDGE AND C.J.M., AT BIDAR AND THE SUIT OF THE PLAINTIFF BE
DECREED BY DECLARING THE PLAINTIFF IS OWNER AND
POSSESSOR OF THE SUIT LANDS.
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RFA No.200107 of 2018
THIS REGULAR FIRST APPEAL COMING ON FOR FINAL
HEARING, THIS DAY, ASHOK S. KINAGI J., DELIVERED THE
FOLLOWING:
JUDGMENT
This Regular First Appeal is filed by the appellant challenging the judgment and decree dated 03.10.2017 in O.S.No.115/2015 passed by the Additional Senior Civil Judge and CJM, Bidar (for short, hereinafter referred to as 'Trial Court').
2. For the sake of convenience, the parties are referred to as per their ranking before the Trial Court.
3. The appellant is the plaintiff and the respondent is the defendant.
4. Brief facts of the case are that:-
The plaintiff filed a suit for declaration of title and permanent injunction. It is the case of the plaintiff that, the plaintiff is the absolute owner and possessor of land bearing Sy.No.262 measuring 17 acres 11 guntas situated -3- NC: 2024:KHC-K:4806-DB RFA No.200107 of 2018 at Markhal village, within the boundaries mentioned in the suit. According to the plaintiff, during the year 1985-86, the suit land was allotted to the plaintiff by her father. It is the case of the plaintiff that, at the time of allotment totally land measuring 27 Acres 11 guntas was allotted to the plaintiff along with another land in Sy.No.33 measuring 34 acres 15 guntas to the sister of the plaintiff by name Jagadevi. It is contended that with consent of all the concerned and with no objection of Shivasharnappa and other family members, name of the plaintiff was mutated to the extent of 27 acres 11 guntas. From the date of mutation, name of the plaintiff continued as owner and possessor to an extent of 27 acres 11 guntas. After lapse of some time, the plaintiff for legal and family necessity sold 05 acres of land to one Devararao and another 05 acres of land to Laxmi Bai through registered sale deeds. After the sale, now 17 acres 11 guntas of land remained in the name of the plaintiff. It is contended that, the plaintiff is the absolute owner and possessor of the suit land. In the year 1994, the plaintiff and her entire family -4- NC: 2024:KHC-K:4806-DB RFA No.200107 of 2018 shifted to Hyderabad for avocation. Her husband was working as Railway Contractor. The suit land was given to the villagers on Eksaal or crop share basis. The plaintiff and her husband used to collect the money from the villagers by visiting the village Markhal. Since the plaintiff and her family members were residing at Hyderabad, the defendant who is no way concerned to the suit property fraudulently entered his name in the RTC. According to the plaintiff, she noticed fraudulent entry in RTC very recently when her family was shifted to Bidar. It is contended that the defendant who is having no semblance of right, title or interest, is illegally causing obstruction in her possession. Thus, the cause of action arose for he plaintiff to file suit for declaration of title and permanent injunction.
5. The defendant filed written statement denying the allegations made in the plaint. It is contended that there is no cause of action shown to file the suit. The cause of action shown in the plaint is fictitious and -5- NC: 2024:KHC-K:4806-DB RFA No.200107 of 2018 imaginary. In the year 2008, as per the direction of father of the plaintiff as well as plaintiff, the suit land was mutated in his name. Now the plaintiff at the instigation of her husband has filed false suit. It is contended that the defendant is in possession of the suit schedule property since from the year 2008. Therefore, the suit for declaration of title without seeking relief of possession is not maintainable. Hence, he prayed to dismiss the suit.
6. The Trial Court on the basis of the pleadings of the parties, framed the following issues:
1. Whether plaintiffs prove that, they are the joint owners and possessors of suit land along with deft. No.1?
2. Whether the plaintiffs further prove that, the alleged interference by the defendants?
3. Whether the suit in present from is maintainable?-6-
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4. Whether the plaintiffs are entitled for the reliefs as sought for?
5. What order of Decree?
7. The plaintiff in order to substantiate her case examined herself as PW.1 and got marked 24 documents as Exs.P1 to P24. The defendant neither entered into witness box nor got marked any documents.
8. After recording the evidence of PW.1, hearing on both sides and on assessment of the oral and documentary evidence, the Trial Court answered issue Nos.1, 2 and 4 in negative and issue No.3 in affirmative and issue No.5 as per final order and consequently, dismissed the suit of the plaintiff with costs vide judgment dated 03.10.2017 in O.S.No.115/2015.
9. The plaintiff aggrieved by the judgment and decree passed by the Trial Court in the aforesaid suit preferred the present appeal.
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10. Heard the learned counsel for the plaintiff and learned counsel for the defendant.
11. Sri Hanmanthraya Sindol, learned counsel for the plaintiff submits that, the father of the plaintiff gave the suit land to the plaintiff and name of the plaintiff was appeared in the record of rights as owner and possessor. The said property becomes stridhan property of the plaintiff. He contends that the plaintiff preferred an appeal challenging the mutation order passed to enter the name of the defendant in the revenue records. The said appeal was allowed. Again, name of the plaintiff was appearing in the record of rights in respect of the suit land. The defendant filed revision before the Deputy Commissioner, Bidar and the said revision petition is pending for adjudication. Hence, he submits that, the plaintiff became the absolute owner by virtue of Section 14 of the Hindu Succession Act. The Trial Court has failed to consider the said aspect and proceeded to pass the impugned -8- NC: 2024:KHC-K:4806-DB RFA No.200107 of 2018 judgment. On these grounds, he prays to allow the appeal.
12. Per contra, Sri Deepak V.Barad, learned counsel for the defendant submits that, the plaintiff has admitted that the defendant is in possession of the suit schedule property. The suit for mere declaration without seeking the relief of possession is not maintainable as per proviso to Section 34 of the Specific Relief Act. In order to buttress his arguments, he has placed reliance on the judgment of the Co-ordinate Bench of this Court in the case of Sri Aralappa vs. Sri Jagannath and others reported in ILR 2007 KAR 339. Hence, he submits that merely the defendant has not led evidence is not a ground to decree the suit. The plaintiff has approached the Court and she has to establish the case independently and cannot depend upon the weakness of the defendant. Hence, the Trial Court is justified in passing the impugned judgment and decree. On these grounds, he prays to dismiss the appeal.
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13. We have perused the entire records and considered the submissions of the leaned counsel for the parties.
14. The points that arise for our consideration are:
1) Whether the plaintiff proves that she is the absolute owner in possession of the suit schedule property?
2) Whether the suit for declaration without seeking consequential relief of possession is maintainable?
3) Whether the plaintiff proves that the judgment and decree passed by the Trial Court is perverse and arbitrary?
4) What Order or decree?
15. Point No.1: It is the case of the plaintiff that, the suit schedule property was owned and possessed by
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NC: 2024:KHC-K:4806-DB RFA No.200107 of 2018 her father. Father of the plaintiff allotted the suit schedule property in favour of the plaintiff. Thereafter, the plaintiff submitted an application to the revenue authorities to effect mutation and to enter her name in the revenue records. Pursuant to the application submitted by the plaintiff, the revenue authorities have passed an order, after due enquiry, to enter the name of the plaintiff and the name of the plaintiff was entered in the revenue records. Subsequently, the defendant got deleted the name of the plaintiff and got entered his name. In order to substantiate her case, the plaintiff examined herself as PW.1 and she has reiterated the plaint averments in her examination-in-chief and produced the documents. Exs.P1 to P12 are the RTC extracts in respect of the land bearing Sy.No.262 which stands in the name of the plaintiff- Sridevi. Exs.P13 to P16 are the certified copies of the mutation extracts. Ex.P17 is the certified copy of the application filed stating that the plaintiff and her husband have no right, title and interest over the suit schedule property. The said application was submitted to the
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NC: 2024:KHC-K:4806-DB RFA No.200107 of 2018 Tahsildar, dated Nil and it bears the signature of the plaintiff. Ex.P18 is the Hakku Patra issued by the Village Accountant, Markhal. Ex.P19 is the genealogy certificate of the family of the plaintiff and the defendant. Exs.P20 and P21 are the RTC extracts of the suit land. Ex.P22 is the no objection submitted by the plaintiff and her husband stating that the plaintiff and her husband have no right, title and interest over the suit land and they have no objection to transfer the suit land in favour of the defendant. Ex.P23 is the certified copy of the mutation extract which discloses that the name of the defendant was entered in the revenue records. Ex.P24 is the certified copy of the order passed by the Assistant Commissioner, Bidar wherein the plaintiff has challenged the mutation order dated 30.03.2008. The Assistant Commissioner allowed the appeal and set aside the mutation No.127/2007-2008 dated 30.03.2008.
16. Further, during the cross-examination, it was elicited that the suit property was owned by the father of
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NC: 2024:KHC-K:4806-DB RFA No.200107 of 2018 the plaintiff and defendant and it was his self-acquired property and father was cultivating the suit land. She admits that her marriage was performed in the year 1997 and after her marriage, she is residing along with her husband in her husband's house. In the year 1994, shifted to Hyderabad and she admits that her husband is a Contractor. She admits that khata was transferred in the name of defendant and further, when Ex.P15 was confronted to PW.1, she denies her signature. She denies her signature on Ex.P22. When Ex.P15 and Ex.P22 are compared, it is the similar signature.
17. The plaintiff has not produced any records to establish that her father had allotted the suit land in favour of the plaintiff. Further, the plaintiff has produced revenue records to establish that the suit property was allotted to the share of the plaintiff. The said entries are not being supported by the mutation entries. The Hon'ble Apex Court in the case of Dayaram and others vs. Dawalatshah and another reported in AIR 1971 SC
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NC: 2024:KHC-K:4806-DB RFA No.200107 of 2018 681 held that "The order of the Revenue Officer in the mutation proceedings based on untrue piece of evidence has not evidentiary value in the civil suit". The plaintiff has also not produced any records to establish the family settlement alleged to have been effected between the plaintiff, the defendant and their father. The plaintiff is claiming to be the owner based on the RTC extract. It is well established principle of law that mutation of the property in the revenue records neither creates nor extinguishes title to the property nor has it any presumptive value on title. Such entries are relevant for the purpose of collecting the land revenue and the revenue records do not confer title on a person whose name appears in the record of rights. The Hon'ble Apex Court in the case of Jitendra Singh Vs. State of Madhya Pradesh and Others reported in 2021 SCC Online 802 at paragraphs-7 and 8 held as under:
"7. Right from 1997, the law is very clear. In the case of Balwant Singh v. Daulat Singh (D) By Lrs., reported in (1997) 7 SCC 137, this Court had
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NC: 2024:KHC-K:4806-DB RFA No.200107 of 2018 an occasion to consider the effect of mutation and it is observed and held that mutation of property in revenue records neither creates nor extinguishes title to the property nor has it any presumptive value on title. Such entries are relevant only for the purpose of collecting land revenue. Similar view has been expressed in the series of decisions thereafter.
8. In the case of Suraj Bhan v. Financial Commissioner, (2007) 6 SCC 186, it is observed and held by this Court that an entry in revenue records does not confer title on a person whose name appears in record-of-rights. Entries in the revenue records or jamabandi have only "fiscal purpose", i.e., payment of land revenue, and no ownership is conferred on the basis of such entries. It is further observed that so far as the title of the property is concerned, it can only be decided by a competent civil court. Similar view has been expressed in the cases of Suman Verma v. Union of India, (2004) 12 SCC 58; Faqruddin v. Tajuddin (2008) 8 SCC 12; Rajinder Singh v. State of J&K, (2008) 9 SCC 368; Municipal Corporation, Aurangabad v. State of Maharashtra, (2015) 16 SCC 689; T. Ravi v. B. Chinna Narasimha, (2017) 7 SCC 342; Bhimabai Mahadeo Kambekar v. Arthur Import & Export Co., (2019) 3 SCC 191; Prahlad
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NC: 2024:KHC-K:4806-DB RFA No.200107 of 2018 Pradhan v. Sonu Kumhar, (2019) 10 SCC 259; and Ajit Kaur v. Darshan Singh, (2019) 13 SCC 70.
18. By applying the law laid down by the Hon'ble Apex Court in the case of Jitendra Singh (supra) to the present case, we hold that the plaintiff has not acquired any title over the suit schedule property on the basis of record of rights.
19. In view of the above discussion, we answer point No.1 in the negative.
20. Point No.2: The plaintiff has filed suit for declaration of title and permanent injunction. From the perusal of the Record of Rights, the plaintiff is out of possession and the plaintiff has not sought the relief of declaration of title. In order to consider the case on hand, it is necessary to examine Section 34 of the Specific Relief Act, 1963 which reads as under:
"34. Discretion of court as to declaration of status or right.--Any person entitled to any legal character, or to any right as to any
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NC: 2024:KHC-K:4806-DB RFA No.200107 of 2018 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:
Provided 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."
21. The proviso to Section 34 of Specific Relief Act provides that a suit for declaration without seeking the consequential relief of possession, the suit for declaration is not maintainable. The said view is supported by the judgment of Hon'ble Apex Court in the case of Akkamma and Ors. vs. Vemavathi and Ors. reported in (2021) 18 SCC 371. Admittedly, the suit is one for declaration of title and permanent injunction. The plaintiff has not sought the relief of possession. Hence, as per the proviso to Section 34 of the Specific Relief Act, 1963, the suit for mere declaration of title is not maintainable without seeking consequential relief. Hence, in view of above discussions, we answer point No.2 in the Negative.
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22. Point No.3: It is the case of the plaintiff that the defendant has not led any rebuttal evidence. The plaintiff has filed a suit for declaration of title on the basis of revenue records. It is well established principle of law that, in a suit for declaration of title, the burden is on the plaintiff to establish her title to prove declaration of title. In a suit for declaration, the plaintiff has to succeed on the strength of her own title irrespective of whether the defendant proves his case or not. The weakness, if any, in the case of the defendant is not a ground for grant of relief to the plaintiff. The said view is being supported by the judgment of the Hon'ble Apex Court in the case of Jagdish Prasad Patel (Dead) through Legal representatives and another vs. Shivnath and others reported in (2019)6 SCC 82 wherein at paragraphs-44 and 45 it is observed as under:
"44. In the suit for declaration of title and possession, the respondent - plaintiffs could succeed only on the strength of their own title and not on the weakness of the case of the appellant-defendants. The burden is on the respondent- plaintiffs to establish their title to the suit properties to show that they are entitled for a decree for declaration. The respondent - plaintiffs have neither produced the title document i.e. patta-lease which the respondent - plaintiffs are
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NC: 2024:KHC-K:4806-DB RFA No.200107 of 2018 relying upon nor proved their right by adducing any other evidence. As noted above, the revenue entries relied on by them are also held to be not genuine. In any event, revenue entries for few Khataunis are not proof of title; but are mere statements for revenue purpose. They cannot confer any right or title on the party relying on them for proving their title.
45. Observing that in a suit for declaration of title, the respondent - plaintiffs are to succeed only on the strength of their own title irrespective of whether the appellant- defendants have proved their case or not, in Union of India v. Vasavi Coop. Housing Society Ltd., it was held as under: (SCC p. 275, para 15) "15. It is trite law that, in a suit for declaration of title, the burden always lies on the plaintiff to make out and establish a clear case for granting such a declaration and the weakness, if any, of the case set up by the defendants would not be a ground to grant relief to the plaintiff."
23. The Trial Court considering the material placed on record was justified in dismissing the suit of the plaintiff for declaration of title on the ground that the plaintiff has failed to establish his title over the suit schedule property. In view of the above discussion, we answer point No.3 in the Negative.
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24. Point No.4: For the foregoing reasons, we proceed to pass the following:
ORDER i. The Regular First Appeal is dismissed.
ii. The judgment and decree dated
03.10.2017 in O.S.No.115/2015
passed by the Addl. Senior Civil Judge & CJM, Bidar is confirmed.
iii. No order as to costs.
Sd/-
JUDGE
Sd/-
JUDGE
NB/BL
List No.: 1 Sl No.: 3
CT: VK