Karnataka High Court
Smt. Sharada Ramakrishna Naik, vs Smt. Sannamma W/O. Kuppaiah Naik on 3 April, 2018
Author: Krishna S Dixit
Bench: Krishna S. Dixit
1
IN THE HIGH COURT OF KARNATAKA
DHARWAD BENCH
DATED THIS THE 3RD DAY OF APRIL 2018
BEFORE
THE HON'BLE MR. JUSTICE KRISHNA S. DIXIT
REGULAR SECOND APPEAL NO.5686 OF 2013 (DEC)
BETWEEN
SMT. SHARADA RAMAKRISHNA NAIK,
AGE 41 YEARS,
R/O. SODIGADDE CROSS, HADINA VILLAGE,
BHATKAL TALUK,
DISTRICT UTTARA KANNADA - 581320
... APPELLANT
(By SRI. J.S.SHETTY, ADV. )
AND
1 SMT. SANNAMMA W/O. KUPPAIAH NAIK,
AGE MAJOR,
R/O. BAILUMANE, YALAVADIKAVOORU,
TALUK : BHATKAL,
DISTRICT : UTTARA KANNADA - 581320
2 SRI GOVIND S/O. KUPPAIAH NAIK,
AGE MAJOR,
R/O. BAILUMANE, YALAVADIKAVOORU,
TALUK : BHATKAL,
DISTRICT : UTTARA KANNADA - 581320
3 SRI KRISHNA S/O. KUPPAIAH NAIK,
AGE MAJOR,
R/O. BAILUMANE, YALAVADIKAVOORU,
TALUK : BHATKAL,
DISTRICT : UTTARA KANNADA - 581320
2
4 SMT. MASTAMMA D/O. KUPPAIAH NAIK,
AGE MAJOR,
R/O. BAILUMANE, YALAVADIKAVOORU,
TALUK: BHATKAL,
DISTRICT UTTARA KANNADA - 581320
... RESPONDENTS
(By SRI. JAGADISH PATIL, ADV. FOR R1 TO R4)
THIS RSA IS FILED UNDER SECTION 100 OF CPC, AGAINST
THE JUDGMENT AND DECREE DATED 15.03.2013 PASSED IN
R.A.NO.55/2011 ON THE FILE OF THE SENIOR CIVIL JUDGE,
HONNAVAR (ITINERARY COURT AT BHATKAL) DISMISSING THE
APPEAL, FILED AGAINST THE JUDGMENT AND DECREE DATED
27.02.2004 AND THE DECREE PASSED IN O.S.NO.76/2000 ON
THE FILE OF THE CIVIL JUDGE (JUNIOR DIVISION) BHATKAL,
DECREEING THE SUIT FILED FOR DECLARATION.
THIS APPEAL HAVING BEEN HEARD AND RESERVED FOR
JUDGMENT ON 13.03.2018, COMING ON FOR PRONOUNCEMENT
OF JUDGMENT THIS DAY, THE COURT DELIVERED THE
FOLLOWING:
JUDGMENT
(note : to put short before the specific relief act) This Regular Second Appeal is directed against the Judgment and decree dated 15.03.2013 passed by the Senior Civil Judge Court, Honnavar (Itinerary Court at 3 Bhatkal) in RA No.55/2011 confirming the Judgment and Decree dated 27.02.2004 made by the learned Additional Civil Judge (Jr. Dn.) Kumta in O.S.No.76/2000.
2. The brief facts stated are ;
(a) The respondent had instituted a civil suit in O.S.No.76/2000 seeking in effect a decree for declaration of title and consequential rectification of mutation entries in the Revenue Records concerning the suit lands bearing Survey No.203/01 admeasuring 01 Acres & 03 Guntas and Survey No.203/02 admeasuring 02 Acres in Yalavadikavooru of Bhatkal Taluk. The title suit appears to have been founded on the order of the land Tribunal granting occupancy under Section 48-A of the Karnataka Land Reforms Act, 1961. The Appellant being the Defendant resisted the suit by filing the Written Statement.
(b) To prove the suit claim, the plaintiff's side had examined 3 witnesses namely Govinda Kuppayya Naik as 4 PW-1, Narayan Durgayya Naik as PW-2 and Vakatramana Mastappa Naik as PW-3. The plaintiff had got marked 06 documents at Ex.P-1 to P-6. Similarly, the Defendant's side had examined 04 witnesses namely Smt. Sharada Ramakrishna Naik as DW-1, Ramakrishna Manjappa Naik as DW-2, Venkatramana Ram Naik as DW-3 and Ganapati Thaku Bhant as DW-4. Defendant also got marked 05 documents as Ex.D-1 to D-5.
3. The Trial Court had framed as many as 6 issues as under:
(i) Whether the plaintiff proves that he is the lawful owner and in possession of Sy.No.203 of Yelwadikavru by virtue of Land Tribunal in LRM 27:1-B as contained in plaint?
(ii) Whether hefurther proves that he has given 10
guntas to Nagappa Manjayya Naik and
Mahadevi Jatta Naik as contended in plaint ?
(iii) Whether the plaintiff proves that the Tondi vantani made by defendant M.E.No.1906 and 1979 are declared to be void as contended in plaint?5
(iv) Whether the plaintiff is entitled for the declaratory relief as prayed for ?
(v) Whether the court fee paid is improper?
(vi) What decree or order ?
4. Considering the pleadings of the parties and the documentary and oral evidence tendered by them, the Trial Court decreed the suit after answering all the issues in the affirmative. It held that, the oral partition pleaded by the defendant being invalid would not affect the interest of the plaintiff in the suit lands and that the Mutation Entry Nos.1906 and 1979 which were effected pursuant to the said oral partition were liable to be annulled.
5. The Appellant-Defendant filed R.A.No.55/2011 laying a challenge to the Judgment and Decree of the Trial Court on various grounds enumerated in the appeal memo. The first Appellate Court had framed Principally two issues viz ;
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"(i) Whether the Judgment and Decree of the Trial Court are unjust, arbitrary and illegal as contended in the appeal memo ?
(ii) Whether the Judgment and decree of the Trial Court are liable to be interfered with by the first Appellate Court?"
Both the issues were answered in the affirmative.
6. The first Appellate Court namely the learned Senior Civil Judge, Honnavar vide Judgment and Decree dated 15.03.2013 dismissed the Regular Appeal concurring with the finding and reasoning of the Trial Court. Aggrieved by the same, the Appellants have preferred this Regular Second Appeal. After notice, the Respondents have entered appearance through their counsel. Matter is taken up for Admission.
7. The learned counsel for the Appellant Sri.J.S.Shetty contends that the suit as framed by the Respondent-Plaintiff is not maintainable because of the legal bar enacted by the Parliament in Section 34 of the Specific Relief Act, 1963 in as much as the plaintiff has 7 prayed for only a declaratory relief sans consequential relief. He reads the prayer column in the plaint to buttress his argument that the suit is only for a declaratory relief. In support of his contention, he relies upon the Judgment of the Apex Court in the case of Executive Officer, Arulmigu Chokkanatha Swamy Loil Trust, Virudhunagar Vs. Chandran and others reported in 2017 (3) SCC 702. Paragraphs 35 of which reads :
"35. The plaintiff, who was not in possession, had in the suit claimed only declaratory relief along with mandatory injunction. The plaintiff being out of possession, the relief of recovery of possession was a further relief which ought to have been claimed by the plaintiff. The suit filed by the plaintiff for a mere declaration without relief of recovery of possession was clearly not maintainable and the trial court has rightly dismissed the suit. The High Court neither adverted to the above finding of the trial court nor has set aside the above reasoning given by the trial court for holding the suit as not maintainable. The High Court in exercise of its jurisdiction under Section 100 CPC could not have reversed the decree of the court s below without 8 holding that the above reasoning given by the courts below was legally unsustainable. We, thus, are of the view that the High Court committed error in decreeing the suit."
8. He also banks upon the gist of paragraphs 17, 21 and 23 of the Judgment of this Court in the case of State of Karnataka Vs. Vishwanatha Rao reported in ILR 1985 Kar. 2460 which the Editor of the law reports has succinctly puts the ratio as under:
"Plain reading of Section 34 makes it abundantly clear that in such cases the plaintiff has to fall within the scope and ambit 'entitled to any legal character', as evidently such a declaration would not have any relevance to any right as to any property....Legal character has been taken to mean legal status ....When a person is born he acquires a legal entity and not a legal status....What is asked for by the plaintiff is declaration of an event. It is not any relief in the eye of law ...A suit for declare ation of the correct date of birth even though accompanied by a further relief for rectification of the School records is not maintainable in view of Section 34 of the Specific Relief Act, 1963.
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9. The learned counsel Sri.J.S.Shetty also banks upon paragraph No.29 of Aralappa's case decided by this Court reported in AIR 2007 KAR 91 which reads as under :
"29. In the light of the aforesaid judgment and the statutory provisions referred supra, it is clear that, the object of the section is to perpetuate and strengthen testimony regarding title and protect it from adverse attacks and to prevent future litigation by removing existing cause of controversy. The policy of the legislature is not only to secure to a wronged party possession of the property taken away from him but also to see that he is allowed to enjoy that property peacefully. The proviso to the said Section shows the care that has been taken by the legislature to avoid multiplicity of suits and to prevent a person getting the declaration of right in one and immediately after the remedy already available in the other. This is clear from the proviso of the Section. The proviso lays down that no Court shall make such declaration where the plaintiff being able to seek further relief than mere declaration of title omits to do so. The object of this proviso is to avoid multiplicity of the suits. Where the plaintiff is entitled to some consequential relief, 10 directly flowing from the right or title of which lie seeks declaration in the suit, he must seek declaration in the first instance and the consequential relief in the same suit and not by two separate suits. This provision is mandatory and enjoins the Court not to pass a declaratory decree where the plaintiff omits to seek further relief to which he is entitled to, as a natural consequence of the declaration."
10. In short the learned counsel for the Appellant submits that the proviso to Section 34 lays down that no Court shall make declaration of title to the property where the plaintiff being able to seek further relief, omits to do so.
11. Per contra the counsel for the Respondent- Plaintiff contends that the suit is not only for mere declaration of title, but also for a consequential relief namely setting aside of mutation entry Nos.1906 and 1979 which were unlawfully effected on the basis of fictitious oral partition pleaded by the Appellant-Defendant. The counsel contends that, that being the position the bar 11 contained in the proviso to Section 34 of Specific Relief Act, which is restrictive in nature is not invocable at all. He fairly concedes that he does not have any quarrel with the law declared by the Apex Court and this Court in the rulings relied upon by the Appellant supra.
12. The learned counsel for the Respondent- Plaintiffs banks upon a division Bench Judgment of this Court in ILR 1985 Kar. 3872 in support of his contention that a suit for declaration and the consequential relief of rectification of entries in the revenue records is maintainable and that the provisions of Section 135 of the Karnataka Land Revenue Act, 1964 provides for instituting such suits in the facts and circumstances that match with his case. Para 27 of the said Judgment reads :
"That, however, does not mean that the plaintiff's suit for declaration of title and consequential rectification of entries in the record of rights is not maintainable. Mr. Raghavendra Rao 12 for the plaintiff is, in our opinion, justified in contending that such a suit is maintainable and it is one of the remedies provided under the Karnataka Land Revenue Act, 1964.
So far as it is relevant, Section 135 of the Karnataka Land Revenue Act provides :
"Provided that if any person is aggrieved as to any right of which he is in possession, by an entry made in the record of rights maintained under this Chapter, he may institute a suit against any person denying or interested to deny his title to such right, for a declaration of his right under Chapter VI of the Specific Relief Act, 1877; and the entry in the record or register shall be amended in accordance with any such declaration."
In this case, the plaintiff has been able to establish that all the parties including himself got the registration of occupancy rights as Kadim tenants in respect of lands in their respective holdings, but under a wrong Hissa number of S.No.139, that mistake was perpetuated even in the order made by the Special Deputy Commissioner, because there were no disputes before him and there were no rival claims. Each was under the apparent belief that he got the registration of 13 occupancy right in respect of his own holding. It was only when defendant - I was trying to interfere with the rights of the plaintiff in regard to schedule 'A' land, the necessity to file the suit for declaration and correction of entries in the record of rights arose. The plaintiff's suit is therefore, maintainable under the proviso to Section 135 of the Karnataka Land Revenue Act.
13. I have carefully considered the rival contentions of both the sides as to the nature of relief sought for in the suit. The plaintiff has specifically sought for a declaratory relief and also a further relief as to the wrong mutation entries. Since he continues to be in possession, he has not sought for any injunctive relief, in his own wisdom. The pleadings of the parties have to be liberally construed keeping in view the justice of the case. It has long been a settled position of law that the pleadings of the parties should be read in entirety to understand their case. The pleadings of the parties cannot be interpreted as the Uclid's Theorems. Therefore, I am not inclined to accept the contention of the learned 14 counsel for the Appellant that suit is not maintainable because of the bar enacted in proviso to Section 34.
14. The contention of the learned counsel for the Appellant-Defendant as to the maintainability of the suit should otherwise also fail because the foundation for maintaining such the same has not been laid in his pleadings. Nowhere in his Written Statement he has taken up such plea as to bar enacted in the proviso to Section
34. The reply of the counsel for the Appellant that it is a pure question of law that can be argued even without pleadings is difficult to accept in as much as the question is an admixture of law and facts. As held by Rajasthan High Court in the case of Sayed Sanlat Hussain V.Sayed Ilamuddin, AIR 1981 Raj 29 at paragraph No.12.
15. The learned counsel for the Appellant- Defendants next contended that PW-1 the GPA holder of the plaintiff has admitted the possession of this Defendant 15 in his Cross-examination and this admission has not been adverted to by the Courts below and therefore, a substantive question of law in this regard would arise for the consideration of this Court. Per contra the counsel for the Respondent took this Court through the pleadings of the parties and the depositions of the plaintiff side to show that the said contention is not true. Even in the First Appeal too such a contention has not been taken by the Appellant and therefore his argument fails.
16. The learned counsel for the Appellant next contended that, the plaintiff had examined only the GPA Holder as PW-1 and that the GPA Holder had no personal knowledge of material facts of the case. He further contends that no explanation is offered by the plaintiff as to why he did not enter the witness box and that non- availability of the plaintiff for Cross-examination ; the absence of examination in chief has put the 16 defendant in a disadvantageous position in as much as he could not prosecute his defence effectively.
17. The counsel for the Appellant submits that the law in this regard is well settled that the evidence of GPA Holder of the party to the suit who does not have personal knowledge of the material facts of the case is liable to be discarded. This contention is loosely taken in the First Appeal and in this Appeal too. The effort of the counsel for the Appellant to substantiate this contention bear no fruit in as much as barring a few not much relevant question the GPA Holder in this case who deposed as PW-1 had personal knowledge of material facts of the case. Even otherwise also the suit is founded more on documentary evidence. Therefore, no ground is made out for the indulgence of this Court to accept the contention of the Appellant.
18. The learned counsel for the appellant lastly contended that both the oral partition and consequent 17 mutation entries were very old and therefore, the challenge to the same in this suit was barred by limitation. Such a plea admittedly has not been taken up in the Written Statement, as rightly contended by the learned counsel for the Respondent-Plaintiff. However, a one sentence plea has been first taken up in the Regular Appeal memo without stating anything about the relevant material particulars.
19. The counsel for the Appellant contends that Section 3 of the Limitation Act, 1963 is a Parliamentary injunction to the Courts to throw out all time barred matters even in the absence of plea as to limitation. But even for the invocation of this provision minimum foundational facts have to be pleaded. When what is on record is insufficient, the Courts may not treat the issue of limitation since nonsuiting a litigant on the ground of bar limitation is a serious matter. Such a contention cannot be appreciated unless the bar of limitation becomes 18 plainly invocable on the facts demonstrable by records. In this case it is not so and therefore this contention unsustainable.
20. Viewed from any angle no substantial question of law arises in this Regular Second Appeal which involves the concurrent findings of fact as to the title and possession of the Respondent-Plaintiff. Except the contentions urged above, no other question is argued for the consideration of this Court. There is absolutely no merit in the appeal and therefore the same is rejected at the admission stage.
Costs made easy.
SD/-
JUDGE *Svh/-