Karnataka High Court
Nagshetty S/O Bandeppa Jamshette vs Vishnukanth S/O Bandeppa Jamshettee on 12 June, 2024
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NC: 2024:KHC-K:3820-DB
RFA No.200012 of 2015
IN THE HIGH COURT OF KARNATAKA,
KALABURAGI BENCH
DATED THIS THE 12TH DAY OF JUNE, 2024
PRESENT
THE HON'BLE MR. JUSTICE ASHOK S. KINAGI
AND
THE HON'BLE MR. JUSTICE RAJESH RAI K
REGULAR FIRST APPEAL NO.200012 OF 2015 (DEC/INJ)
BETWEEN:
NAGSHETTY
S/O BANDEPPA JAMSHETTE,
AGED ABOUT 54 YEARS,
OCC: AGRICULTURE,
R/O: DHANNURA - H,
TQ: BHALKI, DIST: BIDAR.
...APPELLANT
(BY SRI AMEET KUMAR DESHPANDE, SENIOR COUNSEL FOR
SRI RAHUL R. ASTURE, ADVOCATES)
Digitally signed by
BASALINGAPPA AND:
SHIVARAJ
DHUTTARGAON
Location: HIGH
VISHNUKANTH
COURT OF S/O BANDEPPA JAMSHETTE,
KARNATAKA
AGED ABOUT 45 YEARS,
OCC: BUSINESS,
R/O: DHANNURA H.VILLAGE,
TQ: BHALKI, DIST: BIDAR,
NOW AT HOUSE NO.1630, 6TH CROSS
KENGERI UPANAGAR,
KENGERI LAYOUT, BANGALORE - 60.
...RESPONDENT
(BY SRI SHARANABASAPPA K.BABSHETTY, ADVOCATE)
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RFA No.200012 of 2015
THIS REGULAR FIRST APPEAL IS FILED UNDER SECTION
96 OF CODE OF CIVIL PROCEDURE, PRAYING TO SET ASIDE
THE IMPUGNED JUDGMENT AND DECREE DATED 21.01.2015
MADE IN O.S.NO.10/2011 PASSED BY THE SENIOR CIVIL
JUDGE AND J.M.F.C., AT BHALKI AND FURTHER DECREE THE
SUIT AS PRAYED FOR.
THIS REGULAR FIRST APPEAL COMING ON FOR
DICTATION, 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 21.01.2015 passed in O.S.No.10/2011 by the Senior Civil Judge and JMFC, Bhalki (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. The appellant is the plaintiff and the respondent is the defendant.
3. Brief facts of the plaint averments are that, the plaintiff and the defendant are siblings. It is the case of the plaintiff that, the plaintiff is the owner in possession of the land bearing Sy.No.130/A measuring 08 acres situated at Dhannura-H village, Tq. Bhalki, Dist. Bidar. The plaintiff also -3- NC: 2024:KHC-K:3820-DB RFA No.200012 of 2015 sought for correction of record of rights from the year 2006- 07 onwards by deleting the name of the defendant to the extent of 03 acres in the said land. It is contended that 08 acres of land is having two bits, one measures 06 acres 35 guntas and another bit measures 01 acre 05 guntas. The suit land was allotted to the share of the plaintiff in a family settlement effected between the plaintiff and the defendant. The mutation entry was given effect to and name of the plaintiff was entered in the record of rights and entries stood in the name of the plaintiff till 2004-2005 as owner and possessor. In the family settlement, the defendant was allotted land bearing Sy.No.248/C measuring 02 acres 23 guntas and joint interest in the land bearing Sy.No.249/A measuring 02 acres 20 guntas along with his siblings, Mallikarjun and his father and one Sanjeevkumar S/o Sharanappa. Sharanappa is the brother of plaintiff and defendant who died leaving behind Sanjeevkumar as his legal heir. The defendant out of the property allotted to his share, has sold 33 guntas of land in Sy.No.249/C to one Mohammed Munaf under the registered sale deed. Another -4- NC: 2024:KHC-K:3820-DB RFA No.200012 of 2015 land bearing Sy.No.248/E is measuring 02 acres 16 guntas, out of which, 01 acre 27 guntas was sold to Mohammed Munaf. The land bearing Sy.No.130/A was earlier bearing Sy.No.231. In the family settlement, the plaintiff was allotted an area of 03 acres in land bearing Sy.No.231 towards his share so also, 05 acres of land was allotted to the plaintiff for clearance of loan of the tractor which was raised by the father of the plaintiff. The said land was later re-numbered as Sy.No.130/A. The said land is an irrigated land. The defendant is a permanent resident of Bengaluru since last 20 years, whereas, the plaintiff is an agriculturist. The defendant obtained signatures on blank papers and got his name mutated in respect of 03 acres of land in Sy.No.130/A without giving any notice to the plaintiff. On the basis of the entries in the revenue records, the defendant is trying to interfere with the peaceful possession and enjoyment of the plaintiff. Thus, the cause of action arose to the plaintiff to file a suit for declaration of title and permanent injunction etc. -5- NC: 2024:KHC-K:3820-DB RFA No.200012 of 2015
4. The defendant filed a written statement denying the averments made in the plaint and contended that the description of the suit property shown in the plaint is false and imaginary and the family settlement cannot be construed as family partition. The Hanchike Patra produced by the plaintiff is an unregistered document and it is inadmissible. It is contended that the plaintiff illegally got entered his name to excess 05 acres of land which was in kept joint for repayment of tractor loan and tractor loan is not repaid till day. The defendant sold 33 guntas of land and 01 acre 27 guntas of land in different survey numbers in favour of one Mohammed Munaf which are in possession of respective purchasers. It is contended that the plaintiff was allotted only 03 acres 06 guntas and not 08 acres as alleged in the plaint. It is contended that the defendant is regularly visiting his land and residing in his house at Dhannura village along with family and sisters. It is also contended that the plaintiff has not made clear when the alleged partition took place so also what is the extent of shares allotted. Further, the defendant is the exclusive owner in possession of land -6- NC: 2024:KHC-K:3820-DB RFA No.200012 of 2015 bearing Sy.No.130/A measuring 03 acres by virtue of settlement that took place in the year 2005. It is contended that the plaintiff interfered with the possession of the defendant. The defendant lodged police complaint against the plaintiff in respect of the said land. It is contended that the plaintiff has filed a suit with an intention to harass the defendant. It is contended that the suit for declaration based on an unregistered document is not maintainable. The suit is bad for non-joinder of necessary parties. Hence, prays to dismiss the suit.
5. The Trial Court, on the basis of the pleadings of the parties framed the following issues:
1. Whether the plaintiff proves that, he is owner in possession of the suit land and same was fallen to his share in partition?
2. Whether the plaintiff proves alleged interference?
3. Whether the defendant proves that, he acquired title of the land Sy.No.130-A measuring 03 acres under the revenue entries made in his name as per -7- NC: 2024:KHC-K:3820-DB RFA No.200012 of 2015 settlement and with consent, knowledge of plaintiff in the year of 2005?
4. Whether the plaintiff is entitle the relief as sought for?
5. What order or decree?
6. The plaintiff in order to prove his case got examined himself as P.W.1 and also examined 05 witnesses as P.W.2 to PW.6 and got marked 70 documents at Exs.P-1 to P-70. On the other hand, the defendant examined himself as D.W.1 and examined one witness as D.W.2 and no documents are marked.
7. After hearing the learned counsel for the parties and on assessment of oral and documentary evidence, the Trial Court answered issue Nos.1 to 4 in the negative and issue No.5 as per final order and the suit of the plaintiff was dismissed.
8. The plaintiff, aggrieved by the judgment and decree passed by the Trial Court dismissing the suit, has filed the present appeal.-8-
NC: 2024:KHC-K:3820-DB RFA No.200012 of 2015
9. Heard Sri.Ameet Kumar Deshpande, learned Senior counsel appearing on behalf of Sri.Rahul R. Asture, for the plaintiff and Sri.Sharanabasappa K.Babshetty, learned counsel for the defendant.
10. Learned Senior counsel appearing for the plaintiff submits that the Trial Court has committed an error in dismissing the suit of the plaintiff. He submits that in order to establish that the partition was effected by way of family settlement between the plaintiff and the defendant, the plaintiff has produced certified copy of the family settlement. On the basis of the said family settlement, name of the plaintiff was entered in the revenue records by virtue of Ex.P1 i.e., mutation extract. He submits that the defendant has admitted the said family settlement. The Trial Court ought to have decreed the suit, on the contrary, dismissed the suit which has resulted in miscarriage of justice. He further submits that the Trial Court has not properly appreciated the material placed on record. On these grounds, he prays to allow the appeal.
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11. Per contra, learned counsel for the defendant supports the impugned judgment and decree passed by the Trial Court and prays to dismiss the appeal.
12. We have perused the records and considered the submissions of the leaned counsel for the parties.
13. To decide the appeal, the following points would arise for our consideration:
1) Whether the plaintiff acquired title under Ex.P1 i.e., mutation extract?
2) Whether the Trial Court was justified in declining to grant the relief of declaration of title based on the revenue records?
3) Whether the plaintiff has made out a ground for allowing the application for production of additional evidence?
4) What order or decree?
14. Point No.1: The plaintiff, in order to establish his case, examined himself as PW.1 and reiterated the plaint averments in examination-in-chief. In order to establish that
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NC: 2024:KHC-K:3820-DB RFA No.200012 of 2015 there was family settlement between the plaintiff and the defendant and in the said family settlement, the suit schedule property has fallen to the share of the plaintiff, the plaintiff has produced documents namely, Ex.P1-mutation extract which discloses that there was family settlement between the plaintiff and the defendant and the properties were allotted to the share of respective parties. Exs.P2 and P3 are the RTC extract in respect of land bearing Sy.No.231/A which indicates that the said property stands in the name of the plaintiff. Ex.P4 is the RTC of land bearing Sy.No.130/231/A which stands in the name of the plaintiff. Exs.P5 to P8 are the RTC extract in respect of land bearing Sy.No.130/A which stand in the name of the plaintiff. Exs.P9 to P12 are the RTC extract in respect of Sy.No.130/A which stand in the names of both the plaintiff and defendant and the plaintiff owns 05 acres of land and the defendant owns 03 acres of land. Ex.P13 is the mutation extract which discloses that the name of the plaintiff was deleted and the name of the defendant was included in the revenue records in respect of land bearing Sy.No.130/*/A to an extent of 03
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NC: 2024:KHC-K:3820-DB RFA No.200012 of 2015 acres. Further, in order to prove that there was family settlement between the parties, the plaintiff has also examined 05 witnesses who have deposed in the same line of PW.1.
15. PW.1 in his cross-examination admits existence of tractor loan and also repayment of tractor loan belonging to the joint family. Impliedly, he admits 05 acres of land in Sy.No.231 was left out for payment of tractor loan and he admits that Rs.3,00,000/- loan was unpaid and 03 acres 06 guntas of land in Sy.No.231 was fallen to his share.
16. In rebuttal, the defendant examined himself as DW.1 and he has reiterated the written statement averments in the examination-in-chief and nothing has been elicited in the course of cross-examination from the mouth of this witness and he has also examined one witness as DW.2 who has deposed in the same line of DW.1.
17. From the perusal of the records produced by the plaintiff, it would indicate that the plaintiff has produced mutation extract as per Ex.P1. Ex.P1 does not indicate when
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NC: 2024:KHC-K:3820-DB RFA No.200012 of 2015 the family settlement took place and there is no reference about the execution of the family settlement between the plaintiff and the defendant. The said entry is not supported by any piece of evidence. The order of Revenue Officer in the mutation proceedings based on untrue piece of evidence has no evidentiary value in the civil suit. The said view is supported by the judgment of the Hon'ble Apex Court in the case of Dayaram and others vs. Dawalatshah and another reported in AIR 1971 SC 681. The entire case of the plaintiff is based on family settlement. The plaintiff has not got marked the family settlement and the plaintiff is claiming title based on the family settlement and on revenue records. The partition really means that initially all the coparceners had subsisting title to the totality of the property of the family jointly, that joint title is transformed by partition into separate title of individual coparceners in respect of several items of the properties allotted to them respectively. A family arrangement is a transaction between the members of the same family for the benefit of the family so as to preserve the family property, the peace and security
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NC: 2024:KHC-K:3820-DB RFA No.200012 of 2015 of the family, avoidance family dispute and litigation and also for saving the honour of the family. Such an arrangement is based on the assumption that there was an antecedent title in the parties and the agreement acknowledges and defines what the title is. It is for this reason a family arrangement by which each party takes a share in the property has been held as not amounting to a 'conveyance of the property' from a person who has a title to it to a person who has no title. The word 'Vibhaga' in Sanskrit, 'Bhaga' in Kannada is usually rendered into English by the words 'partition'. It denotes adjustment of diverse rights regarding the whole by distributing them in particular portion of the aggregate. It is a process by which the joint enjoyment of a property is transformed into an enjoyment in severality. It may be by agreement between the parties or by a decree of the Court, however, in either of the cases, the parties to the partition possess an antecedent title in the property and through the process of partition, the antecedent title is specifically defined. Before partition, the property was enjoyed jointly and after partition, they would enjoy the property in
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NC: 2024:KHC-K:3820-DB RFA No.200012 of 2015 severality. Therefore, in a partition, no party gets title for the first time. In other words, partition does not give title or creative title. If the party to the partition has an antecedent title to the property, it only enables him to obtain what is his own in a definite and specific form. Section 5 of the Transfer of Property Act contemplates transfer of property by person whose title in the said property, to another person who has not title. In a partition, no one transfers title which he possesses in favour of a person who does not possess a title. Everyone has an antecedent title. Therefore, no conveyance is involved, in the process of conferment of a new title is not necessary. It does not amount to transfer. Therefore, partition is not a transfer and by partition, nobody acquires title to any property for the first time.
18. In the instant case, the plaintiff has not produced any record to establish the family settlement alleged to have been effected between the plaintiff and the defendant. The plaintiff is claiming to be the owner based on the mutation extract i.e., Ex.P1. It is well established principle of law that mutation of the property in the revenue records neither
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NC: 2024:KHC-K:3820-DB RFA No.200012 of 2015 creates nor extinguishes title to the property nor has it any presumptive value on title. Such entries are relevant for the purpose of collecting 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 to 9 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 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
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NC: 2024:KHC-K:3820-DB RFA No.200012 of 2015 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 Pradhan v. Sonu Kumhar, (2019) 10 SCC 259; and Ajit Kaur v. Darshan Singh, (2019) 13 SCC 70.
9. In view of the above settled proposition of law laid down by this Court, it cannot be said that the High Court has committed any error in setting aside the order passed by the revenue authorities directing to mutate the name of the petitioner herein in the revenue records on the basis of the alleged will dated 20.05.1998 and relegating the petitioner to approach the appropriate court to crystalise his rights on the basis of the alleged will dated 20.05.1998. We are in complete agreement with the view taken by the High Court."
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19. 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 Ex.P1.
20. In view of the above discussion, we answer point No.1 in the negative.
21. Point No.2: The plaintiff has filed a suit for declaration of title over a suit schedule property on the basis of the family settlement and 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 his title to the suit schedule property to show that he is entitled for a decree for declaration of title. In a suit for declaration, the plaintiff has to succeed on the strength of his 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
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NC: 2024:KHC-K:3820-DB RFA No.200012 of 2015 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 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.
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NC: 2024:KHC-K:3820-DB RFA No.200012 of 2015 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."
22. 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.
23. In view of the above discussion, we answer point No.2 in the Affirmative.
24. Point No.3: The plaintiff has filed an application for production of additional evidence under Order XLI Rule 27 of CPC. In support of an application, the appellant filed an affidavit contending that there was family settlement and in the said family settlement, 08 acres of land was allotted to his share and the defendant was allotted certain share in a
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NC: 2024:KHC-K:3820-DB RFA No.200012 of 2015 different survey number and he has sold the same in favour of the third party. The defendant for unlawful and illegal gain, has taken his signature on the blank papers and he has created certain documents and illegally got entered his name in the revenue records. It is contended that in order to prove the contents of the deed of family settlement, the plaintiff examined PWs.2 to 6 and the defendant has also admitted regarding family settlement deed. It is stated that he has paid duty and penalty as directed by the Court, but the Trial Court declined to consider the document on the ground that the said document is not properly visible and not allowed to mark the said document. The said document is essential for the purpose of deciding the case in hand. On these, grounds prayed to allow the application for production of additional evidence. The said application was filed on 11.08.2015. We have perused the records. The plaintiff has not produced any document along with the said application. The plaintiff once again filed I.A.No.1/2022 for production of additional evidence. In support of the application, he has filed an affidavit contending that the memorandum of partition was
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NC: 2024:KHC-K:3820-DB RFA No.200012 of 2015 acted upon and respective shares were allotted under the unregistered memorandum of partition. It is further stated that the Trial Court has not permitted the plaintiff to mark unregistered memorandum of partition, but it can be looked for collateral purpose. Hence, plaintiff filed the documents to establish that he has cleared the loan amount and also two registered sale deeds executed by the defendant in favour of one Mohammed Munaf. The plaintiff has produced the certified copy of the alleged deed of family settlement before the Trial Court. The said document was not marked. We have perused the entire order sheet of O.S.No.10/2011. Admittedly, the said document is an unregistered document and the plaintiff has not paid duty and penalty on the said document. We also perused the original deed of family settlement. It does not bear any endorsement regarding payment of duty and penalty on the said document. The said original deed of family settlement was in the custody of the plaintiff. The plaintiff did not choose to produce the original document before the Trial Court. Further, the registered sale deeds executed by defendants were prior to
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NC: 2024:KHC-K:3820-DB RFA No.200012 of 2015 the filing of the suit. Even the said documents were available during the course of the trial. The appellant/plaintiff did not choose to produce the said documents before the Trial Court. The plaintiff has not offered any explanation for not producing the proposed additional documents before the Trial Court in the affidavit enclosed with the application.
25. The plaintiff has not proved the mandatory requirement of Order XLI Rule 27 of CPC. The plaintiff has filed an application only with an intention to fill up the lacuna. The object of Order XLI Rule 27 of CPC is not to fill up the lacuna. The Hon'ble Apex Court in the case of N. Kamalam(Dead) and Another Vs. Ayyasamy and another reported in (2001) 7 SCC 503, wherein it is held that the additional evidence cannot be produced to fill up the lacuna or gaps in evidence or to patch up the evidence in appeal and said application filed by the plaintiff is only with an intention to fill up the lacuna. The general principle is that the appellate Court should not travel outside the record of the lower court and cannot take any evidence in
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NC: 2024:KHC-K:3820-DB RFA No.200012 of 2015 appeal. However, as an exception, Order XLI Rule 27 CPC enables the appellate court to take additional evidence in exceptional circumstances. The appellate court may permit additional evidence if the conditions laid down in this Rule are found to exist and the parties are not entitled, as of right, to the admission of such evidence. However, at the same time, where the additional evidence sought to be adduced removes the cloud of doubt over the case and the evidence has a direct and important bearing on the main issue in the suit and interest of justice clearly renders it imperative that it may be allowed to be permitted on record, such application may be allowed.
26. Even, one of the circumstances in which the production of additional evidence under Order XLI Rule 27 CPC by the appellate court is to be considered is, whether or not the appellate court requires the additional evidence so as to enable it to pronouncement the judgment or for any other substantial cause of like nature. As observed and held by the Hon'ble Apex Court in the case of A.
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NC: 2024:KHC-K:3820-DB RFA No.200012 of 2015 Andisamy Chettiar v. A. Subburaj Chettiar, reported in (2015) 17 SCC 713, the admissibility of additional evidence does not depend upon the relevancy to the issue on hand, or on the fact, whether the applicant had an opportunity for adducing such evidence at an earlier stage or not, but it depends upon whether or not the appellate court requires the evidence sought to be adduced to enable it to pronounce judgment or for any other substantial cause. It is further observed that the true test, therefore is, whether the appellate court is able to pronounce judgment on the materials before it without taking into consideration the additional evidence sought to be adduced.
27. In the instant case, as observed above, the plaintiff has not full filled the conditions mentioned under Order XLI Rule 27 of CPC. This Court without considering the proposed additional evidence is able to pronounce the judgment. Thus, the plaintiff has not shown sufficient reasons for non-production of the proposed additional evidence before the trial Court and made any grounds to
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NC: 2024:KHC-K:3820-DB RFA No.200012 of 2015 allow the applications. Hence, the applications filed by the plaintiff for production of additional evidence deserve to be rejected. Accordingly, we answer point No.3 in the Negative.
28. 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 21.01.2015
passed by the trial court is hereby
confirmed and further applications for
production of additional documents are
rejected.
iii. No order as to costs.
Sd/-
JUDGE
Sd/-
JUDGE
NB/BL
List No.: 1 Sl No.: 44
Ct;Vk