Karnataka High Court
Hanumanthappa S/O Husnappa Kattimani vs Leela W/O Mareppa Kattimani on 12 February, 2024
Author: Rajendra Badamikar
Bench: Rajendra Badamikar
1 RSA.No.7124/2011
IN THE HIGH COURT OF KARNATAKA
KALABURAGI BENCH
DATED THIS THE 12TH DAY OF FEBRUARY, 2024
BEFORE
THE HON'BLE MR. JUSTICE RAJENDRA BADAMIKAR
REGULAR SECOND APPEAL NO.7124 OF 2011 (DEC/INJ)
BETWEEN
1. HANUMANTHAPPA S/O HUSNAPPA KATTIMANI
SINCE DEAD BY HIS LR'S,
1A. SABAMMA W/O HANUMANTHAPPA KATTIMANI
SINCE DEAD BY HIS LR'S,
2. BHIMARAYA S/O HANUMANTHAPPA KATTIMANI
SINCE DEAD BY HIS LR'S
2A. SMT. NIRMALA W/O LATE BHIMARAYA
AGED ABOUT 56 YEARS, OCC: HOUSE HOLD,
R/O HALISAGAR VILLAGE, TQ. SHAHAPUR,
DIST. YADGIRI.
2B. HUSANAPPA S/O LATE BHIMARAYA
AGED ABOUT 27 YEARS, OCC: AGRICULTURE,
R/O HALISAGAR VILLAGE, TQ. SHAHAPUR,
DIST. YADGIRI.
3 MALLAPPA S/O HANUMANTHAPPA KATTIMANI
SINCE DEAD BY LR'S
3A. SMT. MARALAMMA W/O LATE MALLAPPA
AGED ABOUT 58 YEARS, OCC: HOUSE HOLD,
R/O HALISAGAR VILLAGE, TQ. SHAHAPUR,
DIST. YADGIRI.
2 RSA.No.7124/2011
3B. RAJSHEKHAR S/O LATE MALLAPPA
AGED ABOUT 37 YEARS, OCC: AGRICULTURE.
R/O HALISAGAR VILLAGE, TQ. SHAHAPUR,
DIST. YADGIRI.
3C. MALLIKARJUN S/O LATE MALLAPPA
AGED ABOUT 32 YEARS, OCC: AGRICULTURE,
R/O HALISAGAR VILLAGE, TQ. SHAHAPUR,
DIST. YADGIRI.
4. SAIBANNA S/O HANUMANTHAPPA KATTIMANI
AGE: 45 YEARS, OCC: AGRICULTURE,
5. SHANKRAPPA S/O HANUMANTHAPPA KATTIMANI
SINCE DECEASED BY LRS.
A. SOUBHAGYA D/O LATE SHANKRAPPA KATTIMANI
AGE: 38 YEARS, OCC: HOUSE HOLD,
B. MOUNESH S/O LATE SHANKRAPPA KATTIMANI
AGE: 16 YEARS, OCC:NIL,
C. PRAVEEN S/O LATE SHANKRAPPA KATTIMANI
AGE: 13 YEARS, OCC: NIL,
D. HULIRAJ S/O LATE SHANKRAPPA KATTIMANI
AGE: 10 YEARS, OCC: NIL,
E. DARSHAN S/O LATE SHANKRAPPA KATTIMANI
AGE: 8 YEARS, OCC: NIL,
6. HUSANAPPA S/O HANUMANTHAPPA KATTIMANI
AGE: 40 YEARS, OCC: GOVT. ENGG. KBJNL,
7. SHANTAPPA S/O HANUMANTHAPPA KATTIMANI
AGE: 37 YEARS, OCC: BUSINESS,
8. SANNA BHIMARAYA S/O HANUMANTHAPPA KATTIMANI
AGE: 35 YEARS, OCC: AGRICULTURE
9. SHASHIKANTH S/O HANUMANTHAPPA KATTIMANI
3 RSA.No.7124/2011
AGE: 33 YEARS, OCC: AGRICULTURE,
ALL ARE R/O HALISAGAR VILLAGE,
TQ. SHAHAPUR,
DIST. YADGIRI.
...APPELLANTS
(BY SRI SACHIN M. MAHAJAN, ADVOCATE FOR A2(A) TO A2(C),
A3(A) TO A3(C), A4, A5(A) TO A5(E), A6 TO A9;
A2(A) TO A9 ARE TREATED AS LR'S OF DECEASED A1 VIDE
ORDER DATED 17.08.2022 )
AND
LEELA W/O MAREPPA KATTIMANI
AGE: 58 YEARS, OCC: TEACHER,
R/O HALISAGAR,TQ. SHAHAPUR,
DIST. YADGIRI.
REP. SRI SALOMAN S/O MAREPPA KATTIMANI
AGE: 38 YEARS, .....
R/O HALLI SAGAR, TQ. SHAHAPUR.
...RESPONDENT
(BY SRI LIYAQAT FAREED USTAD, ADVOCATE)
THIS RSA IS FILED U/S. 100 OF CPC, PRAYING TO ALLOW
THE ABOVE REGULAR SECOND APPEAL AND CONSEQUENTLY BE
PLEASED TO SET ASIDE THE JUDGMENT AND DECREE DATED 29-
1-2011 PASSED BY THE COURT OF CIVIL JUDGE (SR. DIVN)
SHORAPUR SITTING AT SHAHAPUR, IN R.A.NO.17/2010 AND
CONFIRM THE JUDGMENT AND DECREE DATED 13-9-2010
PASSED BY THE COURT OF THE CIVIL JUDGE (JR.DN) SHAHAPUR
IN OS.188/2004.
THIS APPEAL HAVING BEEN HEARD AND RESERVED FOR
JUDGMENT ON 20.01.2024, COMING ON FOR 'PRONOUNCEMENT
OF JUDGMENT' THIS DAY, THE COURT DELIVERED THE
FOLLOWING:
4 RSA.No.7124/2011
JUDGEMENT
This regular second appeal is filed challenging the judgment and decree passed by the learned Civil Judge (Sr.Dn.), Shorapur sitting at Shahapur in R.A.No.17/2010 dated 29.01.2011, whereby, the learned Senior Civil Judge had set aside the judgment and decree passed in O.S.No.188/2004 by the learned Civil Judge (Jr.Dn.), Shahapur and decreed the suit of the plaintiff.
2. For the sake of convenience, the parties herein are referred with the original ranks occupied by them before the Trial Court.
3. Brief factual matrix leading to the case are as under:
The plaintiff has filed a suit against the defendant for declaration to the effect that she is the owner and possessor of the suit open yard Municipal No.10-17 and consequential relief of perpetual injunction against the defendant or 5 RSA.No.7124/2011 servants or agents claiming on his behalf not to interfere with her peaceful possession and enjoyment over the suit property. It is alleged that the suit property is part of Survey Nos.364 and 365 of Halisagar village and the said lands are Pada lands since last 50 years and they are adjoining to the village. It is contended that the father-in- law of the plaintiff having three plots in the said survey numbers and the same was purchased from the true owner by name Solabanna. It is contended that the father-in-law of the plaintiff was the absolute owner of the suit property and there was no Gram Panchayat existing at the time of purchase and hence, his name was not entered and after Gram Panchayat came into existence, the name of the father-in-law of the plaintiff and plaintiff's husband entered in the panchayat register by disclosing the suit property as 10-17. It is asserted that after the death of her father-in- law, the name of the husband of the plaintiff was mutated to the suit property and he was enjoying and he has obtained permission for constructing a compound wall over the suit 6 RSA.No.7124/2011 property from the Town Planning Authority, Shahapur (for short 'TPA, Shahapur) in the year 2002 and the same was approved. It is alleged that the defendant being a political leader colluded with the Revenue Authorities, without the knowledge and notice to the plaintiff, got mutated Survey Nos.364 and 365 in his name with malafide intention and he had no right, title or interest over the suit property. The defendant has denied the ownership of the plaintiff over the suit property and hence, it is alleged that the plaintiff has constrained to file a suit for declaration and injunction.
4. The defendant appeared through his counsel and filed written statement disputing the claim of the plaintiff. He contended that the husband of the plaintiff by misleading the authority of TPA, Shahapur obtained construction permission for constructing the compound wall around the suit property, but, when the authorities of TPA, Shahapur came to know about false application and false submission made by the husband of the plaintiff, cancelled the said permission. Hence, neither the husband of the plaintiff nor 7 RSA.No.7124/2011 the father-in-law of the plaintiff have ever enjoyed the suit property. He denied rest of the pleadings regarding colluding and getting mutated the suit property in his name. He contended that his father has purchased the suit property from the original owner in the year 1963-64 and the name of his father - Husanappa was appearing in the record of rights as purchaser. It is also contended that his father had permitted the members of Harijan community of Halisagar village to construct their houses in the suit property and remaining portion of the suit property is in possession and enjoyment of the defendant. He contended that in Column No.9 of the record of rights, his name is appearing as per the order of the Tahasildar, Shahapur dated 11.06.1990. He also contended that the wife of true owner of suit land one Guramma W/o. Solabanna objected for mutating the said lands in favour of the defendant and she also filed a civil suit for declaration of title and injunction in O.S.No.32/1994 and the said suit was dismissed. Hence, the defendant has 8 RSA.No.7124/2011 disputed the entire claim of the plaintiff and sought for dismissal of the suit.
5. On the basis of these pleadings, the Trial Court has framed the following six recasted issues:
1. Whether the plaintiff proves that, her father-in-
law had purchased the suit property from one Solabanna?
2. Whether the plaintiff proves that, after the death of her father in-law and her husband she has been succeeded the suit schedule property?
3. Whether the plaintiff further proves that, by colluding with the revenue authority without the knowledge of plaintiff suit properties are mutated in the name of defendant?
4. Whether the plaintiff further proves that, defendant is interfering plaintiff possession and enjoyment of suit property illegally?
5. Whether the plaintiff is entitled relief of declaration and injunction?
9 RSA.No.7124/2011
6. What order or decree?
6. The power of attorney holder of the plaintiff was examined as PW.1 while one witness was examined as PW.2. Further, the plaintiff has produced 23 documents marked as Exs.P1 to P23. The defendant got examined himself as DW.1 and he placed reliance on four documents marked as Exs.D1 to D4.
7. After hearing the arguments and after appreciating the oral and documentary evidence, the learned Civil Judge has answered issue Nos.1 to 5 in the negative and ultimately dismissed the suit. Against this judgment and decree, the plaintiff has approached the learned Senior Civil Judge in R.A.No.17/2010. The learned Senior Civil Judge after re-appreciating the oral and documentary evidence, set aside the judgment and decree of the Civil Judge and decreed the suit of the plaintiff declaring that the plaintiff is the owner and possessor of the suit property and granted order of injunction. Against this divergent view, the 10 RSA.No.7124/2011 defendant is before this Court by way of this second appeal under Section 100 of CPC.
8. During the pendency of the appeal, the original appellant/defendant has expired and his legal representatives were brought on record and they prosecuted the matter.
9. Heard the arguments advanced by the learned counsel for the appellants/defendant and the learned counsel for the respondent/plaintiff. Perused the records.
10. The learned counsel for the appellants would contend that the suit is filed for declaration and injunction and claim of the plaintiff is based on the oral sale and only she has produced the map and construction permission itself was not produced. He would also contend that though the Trial Court has properly appreciated the oral and documentary evidence, the appellate Court has casted the negative burden on the defendant to prove his title ignoring the fact that the plaintiff has approached the Court seeking 11 RSA.No.7124/2011 title. He would contend that the plaintiff has failed to substantiate his contention by relying on Ex.D4, but as per the said document, it is submitted that the permission was cancelled. He would also contend that Ex.D4 was never challenged and in Ex.P4, no boundaries and property number was disclosed. He would also contend that Exs.P12 to P14 are mortgage by one Bhimappa and not by the plaintiff and in other documents, property number was not disclosed. He would also contend that in Ex.P22, the property number is shown as 10-18, but the suit property number is 10-17. Hence, the document does not establish the title of the plaintiff. He would also assert that the revenue documents are not the documents of title and the plaintiff has not placed any documents of title and hence, sought for dismissal of the suit by allowing the appeal.
11. Per contra, the learned counsel for the respondent would contend that the suit property is part of Survey Nos.365 and Exs.P1 to P22 disclose that it was purchased about 50 years back and it is an open site. The ownership of 12 RSA.No.7124/2011 Solabanna is admitted and it was purchased about 50 years back. It is contended that now the name of Solabanna was shown in Column Nos.9 and 12 of the record of rights and the tax was paid by the plaintiff. He would contend that regarding possession, the case of the plaintiff was admitted by DW.1 in his cross-examination and atleast injunction relief can be granted. Hence, he would seek for dismissal of the appeal.
12. This Court vide order dated 30.11.2011 framed the following substantial questions of law:
1. Whether the 1st appellate court was right in law in not appreciating the settled principles of law that entries in ROR do not confer title on any person?
2. Whether the 1st appellate court right in law in not appreciating the transaction by which the plaintiff alleged have acquired title which is hit by section 17 of Registration Act?
3. Whether the 1st appellate court correct in holding the settled principles the person approaching 13 RSA.No.7124/2011 should prove this title and the weakness of defendants cannot be taken?
4. Whether the 1st appellate court was right in not appreciating that the sale by which the plaintiffs father-in-law is supposed to have purchased the suit property does not confer title on him as per the provisions of Section 56 of the Transfer of Property Act?"
13. The plaintiff has filed the suit for declaration and injunction. The suit property is open yard bearing Municipal No.10-17, measuring North to South 150' towards eastern side, towards southern side there is a 100', East to West 80' towards southern side, towards northern side there is some hard size area measuring 60'x40', which was shown clearly in the approved map with specific boundaries in paragraph No.2 of the plaint. The specific assertion of the plaintiff is that the suit property was purchased by her father-in-law from the original owner and the suit proper is part of Survey Nos.364 and 365. It is important to note hear that the plaintiff is a teacher and in the year 2004, she claims to be aged about 14 RSA.No.7124/2011 50 years and asserts that it was purchased by her father-in- law 50 years earlier. The plaintiff did not enter into the witness box and executed a power of attorney in favour of her son aged about 35 years, who is an advocate, to depose on her behalf. In the entire affidavit, there is no specific assertion that PW.1 i.e., power of attorney holder had personal knowledge of the facts and circumstances. In his examination in chief, he simply asserts that he knew all the facts and circumstances. He is giving evidence but he never asserted that he had personal knowledge about these aspects. But, admittedly he was not born on the date of the alleged sale deed, being a son of the plaintiff. Hence his evidence will not assist the plaintiff.
14. PW.1 in his examination in chief has reiterated the plaint averments and all along it is alleged that the suit property was purchased orally about 50 years back. But, there is absolutely no pleadings as to who has executed the sale deed, who has sold the property, on which date, the 15 RSA.No.7124/2011 property was sold and what was the sale consideration amount.
15. The sale is governed under Section 54 of the Transfer of Property Act, 1882 and the sale is defined as a transfer of ownership in exchange for a price paid or promised or part paid and part promised sale. Further, as per Section 54 of the T. P. Act, in case of tangible immovable property of the value of one hundred rupees and upwards, or in the case of a reversion or other intangible thing, the sale can be made only by a registered instrument. In the instant case, all along it is asserted that it is an oral sale. But, there is no specific assertion as to what was the sale consideration and even the specific date of sale was not asserted. The plaintiff is simply relying on the property extract and revenue entries to prove her title. Ex.P2 - demand extract is relied and it is for the year 2002-03 and the name of the plaintiff's husband is appearing in possessors' column. But, there is no document to show that the name of the father-in-law of the plaintiff was ever entered.
16 RSA.No.7124/2011
16. The plaintiff has produced the approved plan issued by the Town Municipality for construction of the compound wall and that the approved plan is at Ex.P4. But, Ex.P4 is only the approved plan and there is no document to show that the approved order of the municipality was issued. Interestingly, Ex.D4 discloses that this approved plan was subsequently cancelled by the concerned municipal authority and it was never challenged. Though it is argued that Ex.D4 was passed behind the back of the plaintiff, there is no evidence to show that the plaintiff has challenged the same even till today. The documents disclose that the name of the plaintiff was mutated to the property No.10-17, but there is no evidence to show that 10-17 is part of the Survey Nos.364 or 365. The plaintiff placed reliance on Exs.P7 to P11, but they are pertaining to property No.10-17 and 10-18 and tax should be paid individually and it cannot be collected commonly. Merely because the joint tax paid receipts are produced it cannot be presumed that the plaintiff has proved his title over the suit property. The plaintiff has also 17 RSA.No.7124/2011 produced the mortgage deeds at Exs.P12 to P14, but they are not in the name of the plaintiff and they are in the name of different persons. Ex.P15 is the letter addressed to the secretary dated 24.11.2004 after institution of the suit and hence, it does not have any relevancy. The other documents produced at Exs.P19 and P20 are in the name of Solabanna and they were not assisting the plaintiff in any way.
17. The plaintiff all along asserted that the suit property is part of Survey Nos.364 and 365, but to substantiate this contention, absolutely no piece of document is produced and all along it is asserted that there was an oral sale. As observed above, the date of sale and the consideration amount was nowhere asserted. Further, there is no specific assertion that the suit property is situated either in Survey No.364 or 365. A vague assertion was made that the suit property is part of Survey Nos.364 and
365. 18 RSA.No.7124/2011
18. Apart from that, in paragraph No.7 of the plaint itself, the title of the defendant over Survey Nos.364 and 365 is admitted and in paragraph No.7 of the plaint, it is specifically asserted that the defendant and other 39 persons are owners and possessors of Survey Nos.364 and 365, but it is asserted that only in Column No.9 of the record of rights, the name of the husband of plaintiff is shown, but from whom the father-in-law of the plaintiff has purchased the suit property is nowhere pleaded. It is also an undisputed fact that the plaintiff is possessing a house property bearing No.10-18, which is not the suit property. Further, it is not the case of the plaintiff that the suit property is adjoining to the house property bearing No.10-
18. If the boundaries given pertaining to the suit property bearing No.10-17 are considered, it discloses that property bearingNo.10-18 is not adjoining to the suit property and it is not disclosed in boundaries on any of sides. The documents pertaining to tax are pertaining to property No.10-18 and 19 RSA.No.7124/2011 merely 10-17 is also mentioned there, it cannot be presumed that the plaintiff is the owner of the suit property.
19. Admittedly, the revenue entries are not documents of title. In this context, the Trial Court has placed reliance on a decisions reported in KCCR 2009 (1) 670 - Jayamma vs. State of Karnataka and (1996) 6 SCC 223 - Sawarni (Smt.) vs. Inder Kaur (Smt.) and Others, wherein it is clearly held that the revenue entries are not the documents of title and the mutation in the revenue records are only for collection of tax and they do not have any presumptive value of title. Further, the learned Civil Judge has also placed reliance on a decision of the Hon'ble Apex Court in reported in AIR 1954 SC 526 - Moran Mar Basselios Catholicos and Another vs. The Most Rev. Mar Poulose Athanasius and Another, wherein it held that the plaintiff having approached the Court seeking title cannot take advantage of the weakness of the defendant and he is required to prove his title over the suit property independently. This is now settled position and 20 RSA.No.7124/2011 since the plaintiff is asserting her title, she is required to prove her title over the suit property and she cannot take advantage of the weakness of the defendant. The defendant can take inconsistent stands, but the plaintiff should be certain regarding her claim.
20. The learned Civil Judge has appreciated all these aspects and has rightly dismissed the suit by answering all the issues in the negative. However, the learned Senior Civil Judge has completely casted the burden on the defendant as if the defendant has approached the Court seeking the relief of declaration. Though the defendant has put his claim of title over the suit property, he did not seek any declaratory relief. However, he disputed the title of the plaintiff and quite interestingly the plaintiff in paragraph No.7 of the plaint itself admitted the joint title of the defendant over Survey No.364 and 365. Admittedly, the suit property is part of Survey No.364 and 365 and when the plaintiff is ascertaining the specific title over the suit property, the burden is on him to substantiate the acquisition of title. He cannot rely on the 21 RSA.No.7124/2011 revenue entries to prove his title and he cannot take advantage of the weakness of the defendant.
21. The learned counsel for the respondent/plaintiff placed reliance on a decision reported in 1970 AIR SC 846 - Somnath Barman vs. Dr.S.P.raju & Another, wherein, the Hon'ble Apex Court has held that the possession of title is a good title as against everybody other than the lawful owner. But, in the instant case, in paragraph Nol.7 of the plaint, the title of the defendant is admitted by the plaintiff in both the said survey numbers. Hence, the said principles will not come to the aid of the plaintiff in any way.
22. The learned counsel for the respondent/plaintiff has further placed reliance on an unreported decision of this Court in RSA No.868/2007 dated 22.10.2020 in the case of Ismailbee vs. Mehtab Saheb. But, the facts and circumstances are entirely different and in the said judgment, the suit was for partition between the brothers and sister. However, in the instant case, the suit is in 22 RSA.No.7124/2011 respect of declaration of title claimed by the third person against the true owner. Hence, said principles will not come to the aid of the plaintiff in any way.
23. He further placed reliance on an unreported decision deceased of the Hon'ble Apex Court in Civil Appeal No.6191/2001 dated 25.03.2008 - Anathula Sudhakar vs. P. Buchi Reddy (Dead) by LRs. and Others. In the said decision, the Hon'bel Apex Court held that in a suit for injunction simplicitor, possession matters and title will not be directly and substantially in issue. Further, in paragraph No.20, the Hon'ble apex Court has clearly held that the defendant was claiming through succession while the plaintiff is claiming title by way of gift deed and the same was not proved as there was no mutation. Hence, it is held that the defendant had made out possession following title and such principles would rather help the defendant than the plaintiff and in what way the said principles are applicable to the plaintiff in this case is not at all forthcoming. Hence, the said principles will not come to the aid of the plaintiff in any way. 23 RSA.No.7124/2011
24. He also placed reliance on a decision of this Court in RSA No.288/2002 dated 15.05.2020 - Muniyappa (Dead by L.Rs. vs. N.Narayana (Dead by L.Rs.), but the facts and circumstances are entirely different. The settled law is that a person who approaches Court is required to prove his case and in the instant case, the plaintiff is seeking title by way of declaration and consequential relief of injunction. The plaintiff herself is not sure as to whether the suit property is part of Survey No.364 or 365. There is no evidence as to when the survey number was converted into municipal number and merely because of some revenue entries, the plaintiff cannot establish her title as revenue entries are not documents of title. The plaintiff though claimed sale, the date of sale and sale consideration amount was never pleaded by the plaintiff.
25. All these facts and circumstances were lost sight of by the learned Senior Civil Judge and he has in fact casted a negative burden on the defendant to prove the title of the defendant ignoring the fact that the plaintiff has approached 24 RSA.No.7124/2011 the Court and he is required to prove her title. Hence, the approach of the learned Senior Civil Judge is erroneous and arbitrary, which has resulted in miscarriage of justice. Hence, the judgment and decree passed by the learned Senior Civil Judge in R.A.No.17/2010 is perverse, arbitrary and calls for interference.
26. In view of these facts and circumstances, the substantial questions of law Nos.1, 2 and 4 are answered in the negative and in favour of the appellant/defendant as the Court was not right in not properly appreciating the settled principles of law and accordingly, the substantial question of law No.3 is also answered in favour of the defendant. As such, the appeal needs to be allowed and accordingly, I proceed to pass the following:
ORDER The appeal is allowed.
The impugned judgment and decree passed by the learned Civil Judge (Sr.Dn.), Shorapur in R.A.No.17/2010 is 25 RSA.No.7124/2011 set aside and the judgment and decree passed by the learned Civil Judge (Jr.Dn.) in O.S.No.188/2004 stands restored.
In the circumstances, there is no order as to costs.
Sd/-
JUDGE SRT