Karnataka High Court
Umadevi W/O Mallikarjunappa ... vs Sri Channappa S/O Shankarappa on 18 July, 2024
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NC: 2024:KHC-K:5087
RSA No. 662 of 2007
C/W RSA No. 638 of 2007
RSA No. 661 of 2007
IN THE HIGH COURT OF KARNATAKA
KALABURAGI BENCH
DATED THIS THE 18TH DAY OF JULY, 2024
BEFORE
THE HON'BLE Mrs JUSTICE K S HEMALEKHA
REGULAR SECOND APPEAL NO.662 OF 2007 (DEC/INJ)
C/W
REGULAR SECOND APPEAL NO. 638 OF 2007
REGULAR SECOND APPEAL NO. 661 OF 2007
IN RSA NO.662/2007:-
BETWEEN:
ANNAPPA,
S/O MALLIKARJUNAPPA INGANSHETTY,
AGED ABOUT 50 YEARS,
R/AT KADEHALLI VILLAGE,
Digitally signed
by SWETA CHITAPUR TALUK,
KULKARNI
Location: HIGH
GULBARGA DISTRICT-585 102.
COURT OF ...APPELLANT
KARNATAKA
(BY SRI SACHIN M. MAHAJAN, ADVOCATE)
AND:
SRI CHANNAPPA S/O SHANKARAPPA,
AGED ABOUT 51 YEARS,
R/AT KADEHALLI VILLAGE,
CHITAPUR TALUK,
DIST: GULBARGA-585 102.
...RESPONDENT
(BY SRI R. S. SIDHAPURKAR, ADVOCATE)
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NC: 2024:KHC-K:5087
RSA No. 662 of 2007
C/W RSA No. 638 of 2007
RSA No. 661 of 2007
THIS RSA IS FILED UNDER SECTION 100 CPC, PRAYING
TO SET ASIDE THE JUDGMENT AND DECREE DATED:
07.04.2005 PASSED BY THE LEARNED CIVIL JUDGE (SR.DN.)
SEDAM IN O.S. NO.347/2002 AND THE JUDGMENT AND
DECREE DATED 05.01.2007 PASSED BY THE LEARNED
PRINCIPAL DISTRICT JUDGE, GULBARGA IN R.A. NO.20/2005.
IN RSA NO.638/2007 :-
BETWEEN:
1. SMT. UMADEVI,
W/O MALLIKARJUNAPPA INGANSHETTY,
AGED: 48 YEARS,
2. SRI. ANNAPPA,
S/O MALLIKARJUNAPPA INGANSHETTY,
BOTH RESIDING AT
KADEHALLI VILLAGE,
CHITAPUR TALUK,
GULBARGA DISTRICT-585 308.
...APPELLANTS
(BY SRI SACHIN M. MAHAJAN, ADVOCATE)
AND:
SRI CHANNAPPA S/O SHANKARAPPA,
AGED ABOUT 51 YEARS,
R/AT KADEHALLI VILLAGE,
CHITAPUR TALUK,
DIST: GULBARGA-585 308.
...RESPONDENT
(BY SRI R. S. SIDHAPURKAR, ADVOCATE)
THIS RSA IS FILED UNDER SECTION 100 CPC, PRAYING
TO SET ASIDE THE JUDGMENT AND DECREE DATED:
07.04.2005 PASSED BY THE LEARNED CIVIL JUDGE (SR.DN.)
SEDAM IN O.S. NO.219/2002 AND THE JUDGMENT AND
DECREE DATED 05.01.2007 PASSED BY THE LEARNED
PRINCIPAL DISTRICT JUDGE, GULBARGA IN R.A. NO.18/2005.
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NC: 2024:KHC-K:5087
RSA No. 662 of 2007
C/W RSA No. 638 of 2007
RSA No. 661 of 2007
IN RSA NO.661/2007:-
BETWEEN:
UMADEVI,
W/O MALLIKARJUNAPPA INGANSHETTY,
AGED 51 YEARS,
R/AT KADEHALLI VILLAGE,
CHITAPUR TALUK,
GULBARGA DISTRICT-585 102.
...APPELLANT
(BY SRI SACHIN M. MAHAJAN, ADVOCATE)
AND:
SRI CHANNAPPA
S/O SHANKARAPPA,
AGED ABOUT 36 YEARS,
R/AT KADEHALLI VILLAGE,
CHITAPUR TALUK,
DIST: GULBARGA-585 102.
...RESPONDENT
(BY SRI R. S. SIDHAPURKAR, ADVOCATE)
THIS RSA IS FILED UNDER SECTION 100 CPC, PRAYING
TO SET ASIDE THE JUDGMENT AND DECREE DATED:
07.04.2005 PASSED BY THE LEARNED CIVIL JUDGE (SR.DN.)
SEDAM IN O.S. NO.133/2003 AND THE JUDGMENT AND
DECREE DATED 05.01.2007 PASSED BY THE LEARNED
PRINCIPAL DISTRICT JUDGE, GULBARGA IN R.A. NO.21/2005.
THIS APPEAL, COMING ON FOR FINAL HEARING, THIS
DAY, THE COURT DELIVERED THE FOLLOWING:
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RSA No. 662 of 2007
C/W RSA No. 638 of 2007
RSA No. 661 of 2007
JUDGMENT
All the appeals are taken up together since they arise out of the common judgment and decree of the Courts below.
2. RSA 638/2007 is preferred by the defendants in O.S No.219/2002.
3. Suit O.S No.219/2002 was filed by one Channappa against the appellant Umadevi and one Annappa for relief of declaration with respect to land Sy.No.38/1 measuring 9 acres 26 guntas, recovery of possession of 1 acre 12 guntas of land from the defendants. The suit of Channappa was decreed. R.A No.18/2005 preferred by the defendants Umadevi and Annappa, the said appeal was dismissed confirming the judgment and decree of the Trial Court. Aggrieved, the defendants are before this Court in RSA No.638/2007.
4. RSA No.661/2007 is preferred by Umadevi the plaintiff in O.S No.133/2003, seeking for a relief of -5- NC: 2024:KHC-K:5087 RSA No. 662 of 2007 C/W RSA No. 638 of 2007 RSA No. 661 of 2007 declaration and injunction with respect to land Sy.No.38/2 measuring 4 acres 26 guntas. The Trial Court dismissed the suit of the plaintiff. Aggrieved, the plaintiff preferred appeal in R.A No. 21/2005. The First Appellate Court confirmed the judgment and decree of the Trial Court against which the Umadevi is in second appeal.
5. RSA No.662/2007 is preferred by the plaintiff in O.S No.347/2002, seeking for relief of declaration and injunction with respect to land Sy.No.38/3 measuring 12 acres 32 guntas. The Trial Court dismissed the suit of the plaintiff Annappa. Appeal preferred by the plaintiff in R.A No.20/2005 was dismissed confirming the judgment and decree in O.S No.347/2002.
6. The parties herein are referred to as Channapa- plaintiff and Umadevi and Annappa as defendants for the sake of convenience.
7. Sy.No.38 of Kadehali village measuring 25 acres 25 guntas in extent belonged to common owners -6- NC: 2024:KHC-K:5087 RSA No. 662 of 2007 C/W RSA No. 638 of 2007 RSA No. 661 of 2007 viz., Sharanappa, Erappa and Basappa. Sharanappa had eastern half share in the land under the registered sale deed dated 8 Meher 1343 Fasli corresponding to August 1934 AD, extent of 12 acres 32 guntas sold in favour of the grandfather of the appellant-Annappa in RSA No.662/2002, grandfather of the appellant by name Shivalingappa Inganshetty and defendant No.2. Annappa contends that he is in possession and enjoyment to the said extent. The remaining extent of 12 acres 33 guntas in Sy.No.38 situated on the Western side belonged to Sharanappa's brothers namely, Erappa and Basappa, the Shikmidars and Hissedars. One of the Hissedars, Erappa was entitled to 1/3rd share and the other Hissedars Basappa was entitled to 2/3rd share, out of the remaining half. i.e., 8 acres 22 guntas. Erappa's grandson Gurappa sold 1/3rd extent measuring 4 acres 26 guntas, situated in the middle portion in favour of the appellant's mother namely Umadevi (RSA No.661/2007) under registered sale deed dated 18.05.1972. Basappa's son Sharanabasappa -7- NC: 2024:KHC-K:5087 RSA No. 662 of 2007 C/W RSA No. 638 of 2007 RSA No. 661 of 2007 and Shivashankar sold their 2/3rd extent of 8 acres 23 guntas to Channappa-the plaintiff under registered sale deed dated 12.2.1986. The Khasra Pahani of the year 1954-55, shows the following extent:
1. Sy.No. 38/1 - 8 acres 22 guntas.
2. Sy.No. 38/2 - 4 acres 11 guntas.
3. Sy.No. 38/3 - 12 acres 32 guntas.
8. As per the Khasra Pahani, the measurement of Sy.No.38/1 in which the plaintiff-Channappa is seeking for declaration is measured only 8 acres 22 guntas in extent. The plaintiff filed suit seeking decree of declaration and injunction claiming that he had purchased 9 acres 26 guntas in extent from his previous owner and further that the defendants had encroached upon an extent of 1 acre 12 guntas of the land belonging to him. The suit was resisted by the defendants - appellants herein.
9. The Trial Court and the First Appellate Court taking into consideration the settlement register, wherein an entry is made showing that Sy.No.38/1 is 9 acres 26 -8- NC: 2024:KHC-K:5087 RSA No. 662 of 2007 C/W RSA No. 638 of 2007 RSA No. 661 of 2007 guntas, Sy.No.38/2 is shown as 4 acres 26 guntas and Sy.No.38/3 as 11 acres 3 guntas and arrived at a conclusion that the plaintiff - Channappa has proved that he is the owner of Sy.No.38/1 measuring 9 acres 26 guntas and he is entitled for possession in respect of 1 acre 2 guntas and decreed the suit of the plaintiff Annappa and dismissed the other suit O.S Nos.133/2003 and 347/2002. In the appeals preferred by the defendants confirmed the judgment and decree of the Courts below.
10. This Court while admitting the appeal has framed the following substantial question of law on 09.03.2007.
" Whether the Courts below were justified in decreeing the suit of the plaintiff on the basis of the averments in the sale deed as well as the entries in the survey settlement when the evidence on record showed that the vendor of the plaintiff in fact really did not acquire title to the property, the extent of which is mentioned in the sale deed as well as the survey settlement ?"
11. Learned counsel for the appellants Sri Sachin M. Mahajan and R. S. Siddhapurkar learned counsel -9- NC: 2024:KHC-K:5087 RSA No. 662 of 2007 C/W RSA No. 638 of 2007 RSA No. 661 of 2007 appearing for the respondents have been heard on the substantial question of law framed by this Court.
12. Learned counsel for the appellant submits that the Courts below have committed a fundamental error in not considering the Khasra Pahani of the year 1954-55 which clearly indicates that Sy.No.38/1 measures 8 acres 22 guntas, Sy.No.38/2 measures 4 acres 11 guntas and Sy.No.38/3 measures 12 acres 32 guntas and the respondent plaintiff has failed to prove that he is the owner to the extent of 9 acres 26 guntas as per the sale deed. Learned counsel submits that the khasara Pahani is the document of title. When there is no other title deed and invariably the sale deed executed in favour of the plaintiff to the extent of 9 acres 26 guntas it is without there being any title to the vendor and the Courts below have blindly concluded that the respondent - plaintiff has proved his title in respect of 9 acres 26 guntas in extent.
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13. Per contra the learned counsel appearing for the respondent taking this Court to the settlement register would contend that the settlement register is of the year 1963-64 indicating the measurements carried down and on the said basis Sy.No.31/1 the extent shown is 9 acres 26 guntas and the sale in favour of the respondent-plaintiff by a registered sale deed dated 12.02.1986 based on the resettlement register.
14. As stated supra, the entry of the survey numbers in the Khasra Pahani of the year 1954-55 is 8 acres 22 guntas in Sy.No.38/1, Sy.No.38/2 is shown as measuring 4 acres 11 guntas and Sy.No.38/3 is shown as 12 acres 32 guntas. Annappa who is the defendant No.2, who is the owner of the Eastern half portion of the land in Sy.No.38 measuring 12 acres 32 guntas which he has purchased under the sale deed in August 1934 and as per the Khasra Pahani as on 1954-55 the entry shown is an extent of 12 acres 32 guntas and which is now given Sy.No.38/3. The Western side of the property of
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NC: 2024:KHC-K:5087 RSA No. 662 of 2007 C/W RSA No. 638 of 2007 RSA No. 661 of 2007 defendant No.2, the property of his mother Umadevi is situated. The Umadevi's title is disputed by the respondents to the extent of 4 acres 26 guntas, contending that Sy.No.38/2 is measuring only 4 acres 11 guntas as per the settlement and also that the Annappa's land Sy.No.38/3 is reduced to 11 acers 3 guntas.
15. Consequent to the merger of Hyderabad State with India in 1948, the Jagirs were abolished by the Andhra Pradesh (Telangana area), Abolition of Jagirs Regulation, 1358 Fasli. The Hyderabad record of rights in land regulation, 1358, Fasli ('Regulation' for brevity) was established to expedite to amend the law relating to the preparation and maintenance of a record of rights in land in Hyderabad State.
16. Section 4 sub clause 1 of the Regulation envisages the preparation and maintenance of the record of rights for every village included in the local area, a record of rights in all the lands belonging thereto, the said
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NC: 2024:KHC-K:5087 RSA No. 662 of 2007 C/W RSA No. 638 of 2007 RSA No. 661 of 2007 record of rights shall include the following particulars namely:
I. The names of all persons who are holders, occupants, owners or mortgagers of land or assignees of the rent or revenue thereof; II. The nature and extent of the respective interests of such persons and conditions or liabilities (if any) attaching;
III. The rent or revenue (if any) is payable by or to any of such person;
17. Section 4 (1) of the Regulation reads as under:
"Sec.4 (1) As soon as may be after the issue of a Preparation and maintenance of notification under sub-section (4) of section 1 record of rights.
directing the provisions of this Regulation to apply to a village or local area there shall be prepared and thereafter maintained for that village or, as the case may be, for every village included in that local area, a record of rights in all lands belonging thereto; the said record of rights shall include the following particulars, namely:-
(a) the names of all persons who are holders, occupants, owners or mortgagees of land or assignees of the rent or revenue thereof;
(b) the nature and extent of the respective
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NC: 2024:KHC-K:5087 RSA No. 662 of 2007 C/W RSA No. 638 of 2007 RSA No. 661 of 2007 interests of such persons and the conditions or liabilities (if any) attaching;
(c) the rent or revenue (if any) payable by or to any of such persons;
(d) such other particulars as may be prescribed. Provided that notwithstanding anything contained in clause(a) the names of tenants shall not be included in the record of rights unless their tenancies are perpetual tenancies or tenancies of any such other description as Government may by notification specify in this behalf either generally or for the purposes of any specified village or of villages included in any specified area."
Section 13 of the Regulation reads as under:
Presumption of "Sec.13. Any entry in the record of rights and a correctness of entries in record certified entry in the register of mutations shall be of rights and register of presumed to be true until the contrary is proved or a mutations.
new entry is lawfully substituted therefor."
18. Section 13 of the Regulation envisage the presumption of correctness of entries in the record of rights and register of mutations to be true until the contrary or new entry is lawfully substituted there. The Khasra Pahani is a register recording the incidents of
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NC: 2024:KHC-K:5087 RSA No. 662 of 2007 C/W RSA No. 638 of 2007 RSA No. 661 of 2007 tenure and an historical record. Khasra would serve the purpose of deed of title, when there is no other title deed. The Hon'ble Apex Court, in the case of Jt. Collector, Ranga Reddy Dist v. D. Narsing Rao etc.1 has held at Para No. 9 as under:
"9. Consequent to the merger of Hyderabad State with India in 1948 the Jagirs were abolished by the Andhra Pradesh (Telangana Area) Abolition of Jagirs Regulation, 1358 Fasli. 'Khasra Pahani' is the basic record of rights prepared by the Board of Revenue Andhra Pradesh in the year 1954-55. It was gazetted under Regulation 4 of the A.P. (Telangana Area) Record of Rights in Land Regulation 1358F. As per Regulation No.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 edition (1997) of "The Law Lexicon" by P. Ramanatha Aiyar (at page 1053) 'Khasra' is described as follows:
"Khasra is a register recording the incidents of a tenure and is a historical record. Khasra would serve the purpose of a 1 AIR 2015 SC 1021
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NC: 2024:KHC-K:5087 RSA No. 662 of 2007 C/W RSA No. 638 of 2007 RSA No. 661 of 2007 deed of title, when there is no other title deed."
19. The Khasra Pahani of the year 1954-55 indicated 12 acres 32 guntas of Sy.No.38/3, purchased by defendant No.2 - Annappa in 1934. Sy.No.38 is measuring 25 acres 25 guntas. The first sale is in favour of defendant No.2. The second sale was in the year 1972 in favour of the mother of the defendant No.2 namely, Umadevi. The purchase of 4 acres 26 guntas is as per the settlement register after settlement in the record of rights. No material is forthcoming to indicate the basis for entry in the settlement register showing the extent of lesser portions than that is shown in the khasra Pahani. This Court on 01.10.2021 on the application filed by the appellant to appoint ADLR Shahabad as Court Commissioner to conduct the survey and measure the land Sy.Nos.38/1, 38/2 and 38/3 appointed the ADLR as a Court Commissioner and directed the Court Commissioner to conduct the survey and measure the lands.
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20. The survey report has been received by this Court indicating that Sy.No.38/A as on 1954-55 measurement is 8 acres 22 guntas, 38/B 4 acres 11 guntas, 38/C 12 acres 32 guntas, totally measuring 25 acres 25 guntas as per the Khasra Pahani. The report indicates that as per the sale deed 38/A equivalent to 38/1 is 9 acres 26 guntas, 38/B equivalent to 38/2 is 4 acres 26 guntas and 38/C equivalent to 38/3 is 12 acres 32 guntas, in all 27 acres 4 guntas. As per the settlement 38/1 is measuring 9 acres 26 guntas, 38/2 is measuring 4 acres 36 guntas and 38/3 is measuring 11 acres 3 guntas, in all 25 acres 25 guntas.
21. The survey conducted by the Court Commissioner indicates that 38/1 is 8 acres 22 guntas and 38/2 and 38/3 together is 17 acres 3 guntas. The report of the Commissioners is in collaboration with the evidence and materials placed before the Court. The Khasra Pahani of the year 1954-55 is a document of the title and in the
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NC: 2024:KHC-K:5087 RSA No. 662 of 2007 C/W RSA No. 638 of 2007 RSA No. 661 of 2007 absence of the contrary being proved, i.e., settlement register was not prepared after the proper survey and the extent of the lands. The Khasra Pahani of the year 1954- 55 prevails and Sy.No.38/1 is to the extent of 8 acres 22 guntas, Sy.No.38/1 and 38/2 and 38/3 in consolidation are 17 acres 3 guntas, in all the Sy.No.38 is measuring 25 acres 25 guntas.
22. The substantial question of law framed by this Court is answered in favour of the appellants and this Court pass the following -
ORDER
(i) RSA No.638/2007 is allowed in part.
(ii) Suit in O.S No.219/2002 is decreed in part, declaring the plaintiff-Channappa as owner of Sy.No.38/1 measuring 8 acres 32 guntas and recovery of possession is hereby dismissed.
(iii) RSA No.661/2007 is allowed in part.
(iv) Suit in O.S No.133/2003 is allowed in part, declaring the plaintiff-Umadevi to be the owner of Sy.No.38/2 to the extent measuring 4 acres 11 guntas.
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(v) RSA No.662/2007 is allowed.
(vi) The plaintiff-Annappa is declared to be the owner of Sy.No. 38/3 measuring 12 acres 32 guntas, the plaintiff-Channappa and respondent in O.S No.133/2003 and O.S No.347/2002 is hereby restrained from interfering with the possession of Sy.No.38/2 and Sy.No.38/3 in all measuring 17 acres 3 guntas.
Sd/-
JUDGE AT List No.: 1 Sl No.: 59 CT: VD