Karnataka High Court
Sri N Sidda Reddy vs Sri T V Ramakrishna Reddy on 28 February, 2013
Author: B.S.Patil
Bench: B.S. Patil
RSA 164/2011
-1-
IN THE HIGH COURT OF KARNATAKA AT BANGALORE
DATED THIS THE 28TH DAY OF FEBRUARY 2013
BEFORE
THE HON'BLE MR. JUSTICE B.S. PATIL
R.S.A.No.164/2011
BETWEEN:
Sri. N. Sidda Reddy,
Aged about 66 Years,
S/o. Late Nagappa Reddy,
Residing at Kudlu Village,
Sarjapura Hobli,
Anekal Taluk,
Bangalore district. : Appellant
(By Shri S.M. Chandrashekar, Senior Counsel
for Shri K. Suman, Advocate)
AND:
Sri. T.V. Ramakrishna Reddy,
Aged about 59 years,
S/o. T.V. Venkata Reddy,
Residing at No.182,
Nanjappa Road,
Shanthi Nagar,
Bangalore-560 027. : Respondent
(By Shri C.M. Nagabushana &
Shri P.V. Chandrashekar, Advocates)
This Regular Second Appeal is filed under Section 100
of the Code of Civil Procedure against the Judgment and
decree dated 26.11.2010 passed in R.A.No.193/2009
RSA 164/2011
-2-
on the file of the Presiding Officer, Fast Track Court-II,
Bangalore Rural district, Bangalore, dismissing the
appeal against the Judgment and decree dated
26.10.2009 passed in O.S.No.303/2004 on the file of the
Civil Judge (Senior Division) and JMFC., Anekal.
This Regular Second Appeal coming on this day, for
further hearing, the Court delivered the following:
JUDGMENT
1. The suit filed by the plaintiff seeking declaration of his title and for permanent injunction in respect of the land to an extent of 01 acre 09 guntas including 01 gunta of phot kharab in Survey No. 47/1B of Kudlu village, Sarjapura Hobli, Anekal Taluk was dismissed by the trial Court. The appeal preferred against the said judgment also came to be dismissed by the learned Judge of the Fast Track Court - II of Bangalore rural district thereby, confirming the Judgment and decree passed by the trial Court. Therefore, aggrieved by the concurrent findings of both the Courts below, this regular second appeal is filed by the plaintiff.
RSA 164/2011-3-
2. The case of the plaintiff was that he purchased the suit land under Ex.P.1 sale deed dated 22.11.1965 from one Chinnaiah @ Arasappa. His vendor, it was urged, had purchased the same under Ex.P.22 - registered sale deed dated 12.05.1958 from one Muninarasamma. Muninarasamma in turn had purchased the same from her vendor Channappa and Yellappa vide registered sale deed dated 15.05.1957 (Ex.P.21). Title of Chinnappa and Yellappa was traced under Ex.P.20 sale deed dated 22.05.1951 from their vendor Shri. Kullappa. Kullappa's title in turn was traced to the sale deed dated 10.04.1939 vide Ex.P.19 where under he purchased the land from one Kalu Muniga. It is thus clear from the case of the plaintiff, as made out in the plaint and in his evidence that the original owner of the land was one Kalu Muniga from whom after it changed various hands finally came to be purchased by the plaintiff as per Ex.P.1 registered sale deed dated 22.11.1965 from one Channayya @ Arasappa. It has to be noticed, at this stage, that the property purchased by Muniga vide Ex.P.19 sale deed dated 10.04.1939, the original owner RSA 164/2011 -4- to whom the ultimate title of the land is traced, is described in terms of yards and the survey number of the property has not been mentioned in the mother deed. It only describes it as measuring East-West 23 yards and North-South 173 Yards. When the first purchase was made by Kullappa on 22.05.1951, the extent of land was described as 0.22 guntas and for the first time the survey number has been mentioned as 201/2 with certain specified boundaries. When the land changed several hands upon purchase by Chinnappa and Yellappa vide Ex.P.21 dated 15.05.1957 the measurement/extent of the land was shown as 0.34 guntas and survey number has been mentioned as 201/2 with certain specified boundary. When the vendors of the plaintiff Channayya @ Arasappa purchased the property under Ex.P.22 vide sale deed dated 12.05.1958, the extent of land was mentioned as 0-34 guntas in Survey No. 201/2. The present plaintiff Siddareddy claims to have purchased the land under Ex.P.1- sale deed on 22.11.1965 wherein it has been described as Sy. No.201/2. But, in the plaint RSA 164/2011 -5- schedule the property in question has been described as under:
"Sy. No. 47/1B measuring 01 acre 08 guntas situated at Kudlu village, Sarjapura hobli, Anekal Taluk along with standing coconut trees and mango trees thereon facing eastern side, bounded on the:
East by : Defendant's property
West by : Plaintiffs property
North by : Plaintiffs property and land
Belong to Eramma
South by : HAL Society property".
3. It is therefore clear that there is variance in the extent of land for which the suit is filed seeking declaration and injunction and the extent of the property, the plaintiff claims to have purchased vide sale deed Ex.P.1. Even the extent of the land mentioned in the title deeds of the predecessor in title of the plaintiff is also not in conformity with the description or the measurement given in the plaint. It is in this background, both the Courts below have found that there was no acceptable explanation forthcoming from the plaintiff as to how the measurement of the land was described as 01 acre 08 guntas which was different from RSA 164/2011 -6- the original description mentioned in the various earlier sale deeds produced at Ex.P.1, P.22, P.21, P.20 and P.19.
4. Both the Courts below have found that while in the registered sale deed of the plaintiff vide Ex.P.1 and that of his vendor/predecessor in title, the survey number of the land has been described as Sy. No.201/2, in the plaint, the plaintiff has laid his claim in respect of Survey No. 47/1B, although he was tracing his title to the said sale deeds without offering any acceptable explanation for his assertion that the property in question comprised Survey No. 47/1B was indeed carved out of the original survey No.201/2.
5. The case pleaded by him was that, as the katha of the land bearing Survey No. 201/2 purchased by him had not been transferred even in the name of his vendors, he had applied for change of katha and at that point of time, the land purchased by the plaintiff under Ex.P.1 was found to be a part of Survey No.47/1B. It was his further case that there was a re-survey conducted and a survey sketch was prepared afresh, as a result whereof the land RSA 164/2011 -7- bearing Survey No.47/1 which was indeed part of survey No.201/2 was sub-divided and re-survey numbers were assigned as Survey No.47/1A and 47/1B.
6. Both the Courts below have found that the plaintiff has failed to establish his case as pleaded hereinabove. It is in this background, the suit filed by the plaintiff has been dismissed and such dismissal of the suit is confirmed by the first appellate court.
7. This appeal was admitted to consider the following substantial questions of law:
i) Whether non-consideration of the material documents produced and the index of mutation records and the survey sketch by both the courts below and also the decision thereon without raising relevant issue has resulted in dismissal of the suit?
ii) Whether the finding of the Courts below in dismissing the suit without referring to the survey sketch and boundaries needs re-
consideration or re-appreciation of the material evidence on record at the hands of this Court as non-consideration of the RSA 164/2011 -8- material documents results in failure of justice?
8. Learned senior counsel appearing for the appellant Shri S.M. Chandrashekar has contended that both the Courts below have failed to take note of the document produced as at Ex.P.10 which disclosed that Survey No. 47/1 was sub-divided after conducting re-survey and the same was renumbered as Survey No. 47/1A and 47/1B as back as on 30.12.1981, whereafter the name of the appellant Shri. Siddareddy came to be entered in the RTC as per Ex.P.2 for the year 1984-1985 to 1986-1987 and as per Ex.P.3 for the year 1990-1991, showing him as owner and occupier to an extent of 01 acre 08 guntas in Survey No. 47/1B. He places strong reliance on the index of records produced as per Ex.P.5 showing the name of the Plaintiff in column No.18, wherein a reference is also made to number ADLR. MR. 2/1982- 1983 dated 11.08.1982.
9. It is relevant to note at this stage that the said ADLR.MR. 2/1982 is not produced. He also placed RSA 164/2011 -9- reliance on Ex.P.9 which has been described as Hissa record as per the survey conducted wherein the name of the plaintiff is mentioned as Hissadar for the land to an extent of 01 acre 09 guntas in Sy. No.47/1B. It is his submission that both the Courts below have ignored these vital revenue records which disclosed the title and possession of the plaintiff over the suit property. It is his further contention that when the revenue survey authorities have recorded the name of the plaintiff as Hissedar after conducting survey and when the name of the plaintiff is found in the Index of land and the RTC extracts in respect of the land in question, the Civil Court will have no jurisdiction to go into the correctness or otherwise of those revenue entries, because of the bar contained under Section-61 of the Karnataka Land Revenue Act 1964. In this regard, he places reliance on the Judgment of this Court in ILR 1986 KAR 2404 (Patel Doddakempegowda -Vs- Chikkeeregowda) affirmed in the judgment reported in ILR 2007 KAR 4457 (Sri Devidas and others -Vs- The Deputy Commissioner and others). He further contends that though the Judgment of the RSA 164/2011 -10- learned single Judge in ILR 1986 KAR 2404 was overruled by a Division bench in ILR 1992 KAR 1649, the latter Judgment reported in ILR 2007 KAR 4457 would prevail, as per the ratio laid down by the Full Bench in the Judgment reported in 2004 KCCR 2768 (Karnataka State Road Transport Corporation -Vs- R. Maheshwari and others).
10. Elaborating his submission, he further contends that, as the survey has been conducted as per the provisions of the Karnataka Land Revenue Act, and in the light of the judgments relied on by him, the dispute cannot be reopened before the Civil Court as the Civil Court cannot ignore these documents particularly, the document marked at Ex.P.10, the Survey and the Index of land. In this connection he draws the attention of this Court to the provisions of Section 133 of the Karnataka Land Revenue Act to contend that a statutory presumption is available in favour of the plaintiff regarding the correctness of the entries made in the revenue records and as long as the same is not rebutted, RSA 164/2011 -11- the Courts below could not have dismissed the suit of the plaintiff.
11. Learned Counsel appearing for the respondent Mr. C.M.Nagabhushan contends inviting the attention of the Court to the defence taken by the defendant that the suit schedule land is a portion of Sy. No.47/1 which earlier measured 2 acres 6 guntas. Venkatappa Reddy was the original owner having purchased the same from one Kaveriga under a registered sale deed dated 26.01.1944 produced at Ex.D-8. Plaintiff's grandfather and Venkatappa Reddy's grandfather were brothers. There was a division of the family properties and in the registered partition deed dated 20.11.1964, Sy. No.47/1 was not included as the same was the absolute property of Venkatappa, but the plaintiff was allotted another land in Sy. No.47/2 in the said partition. He further invites the attention of the Court to the factual matrix to contend that after the death of Venkatappa @ Venkatappa Reddy, land bearing Sy. No.47/1 measuring 2 acres 6 guntas and one residential site was allotted to RSA 164/2011 -12- the share of Eramma W/o late Rama Reddy who was the younger brother of Venkatappa and the said Eramma and her daughter Kamala being the absolute owners in possession and enjoyment of the land sold the same to the defendant as per the registered sale deed dated 17.08.1990 - Ex.D7. He draws the attention of the Court to the mutation entry effected in this connection in the name of the defendant as per M.R.No.2/1991-92 and the transfer of the same in the revenue records/RTCs. His contention is that the so-called phodi of Sy. No.47/1 into 47/1A and 47/1B was not done by issuing notice to the predecessor in title of the defendant. At any rate, it is his contention that both the lands bearing Sy. Nos.47/1A measuring 39 guntas and Sy. No.47/1B measuring 1 acre 9 guntas are absolutely owned by the defendant. The boundaries and the extent of the land as claimed by the plaintiff have all been denied by the defendant.
12. It is urged by them that no presumption under Section 133 would arise by virtue of Exs.P2 to P6, unless it is shown that the entries in the revenue records as per RSA 164/2011 -13- Exs.P2 to P6 were effected lawfully and that they will be lawful only if they are effected as per the provision of Sections 128 & 129 of the Karnataka Land Revenue Act, 1964. Elaborating this contention, he urges that there is no mutation for recording the name of the plaintiff in the revenue records vide Exs.P2 to P6. He invites the attention of the Court to Ex.P28 - appeal memo filed by the plaintiff before the Assistant Commissioner to contend that admittedly the names of both the plaintiff and defendant were found in the pahanies.
13. He further urges that Sy. No.201/2 still continues to be in existence and that there is no connection between Sy. No.47 and Sy. No.201/2 as they have nothing to do with each other. He urges that title to the property should be on the basis of title deeds and not by mutation entries and that merely on the basis of mutation entries, a person cannot be held to be the owner of the land in question. In this regard, he has placed reliance on the judgment of the Apex Court in the case of DURGA DAS VS COLLECTOR & OTHERS - (1996)5 SCC RSA 164/2011 -14- 618, NAVALSHANKAR ISHWARLAL DAVE & ANOTHER VS STATE OF GUJARAT & OTHERS - AIR 1994 SC 1496, STATE OF HIMACHAL PRADESH VS KESHAV RAM & OTHERS - AIR 1997 SC 2181.
14. On careful consideration of the contentions urged by the learned Counsel for both sides and the findings recorded by the courts below, it is clear from the materials on record and the concurrent findings recorded by both the courts below that admittedly plaintiff has purchased land bearing Sy. No.201/2 as per Ex.P-1 - sale deed dated 22.11.1965. Not only that the survey number mentioned in Ex.P-1 has nothing to do with Sy. No.47/1, but also that the extent of land mentioned is 35 gutnas which is far less than what the suit schedule property measures. It is also the admitted case of the plaintiff that the name of the vendors had not been recorded in the revenue records. Nor was the name of the plaintiff entered even after purchase by him for Sy. No.201/2. His case is, that at that time a survey was conducted as reflected in Ex. P-10 and the land bearing Sy. No.201/2 RSA 164/2011 -15- was phoded into Sy. Nos.47/1A & 47/1B and that Sy. No.47/1B is nothing but a portion which formed part of Sy. No.201/2.
15. The question is whether the plaintiff has proved his assertion that Sy. No.47/1B over which he lays claim was carved out of Sy. No.201/2 purchased by him. The documents relied upon for this purpose are Exs.P-10 & P- 2 to 6. Ex.P-10 is considered by the courts below, particularly the lower Appellate Court to hold that there was no material whatsoever produced to show that Sy. No.201/2 was assigned sub numbers as Sy.Nos.47/1A & 47/1B as alleged by the plaintiff. There is nothing to show that any notice was given to the predecessors in title of the defendant. Both the courts have held that the said division is not evidenced by any mutation entry or any order passed by the competent revenue authorities. There is nothing to show that by virtue of any legally instituted proceedings before the revenue authorities, the land which was earlier assigned Sy. No.201/2 was converted into Sy. No.47/1 and phoded into Sy. RSA 164/2011 -16- Nos.47/1A & 47/1B and that Sy. No.47/1B was relatable to the land bearing Sy. No.201/2. Ex.P-10 only speaks about division of Sy. No.47/1 into Sy. Nos.47/1A & 47/1B. There is nothing to show that Sy. No.47/1 itself was part of Sy. No.201/2. Unless this link is established by the plaintiff, he cannot claim that Sy. No.47/1B came to be entered in his name as it was carved out of Sy. No.201/2. There is total lack of connection between Sy. No.201/2 and 47/1. Unless revenue records that have come into existence in accordance with law are placed before the Court to evidence this important factor, as rightly pointed out by the learned Counsel for the respondent, no presumption can be drawn from Ex.P10 to conclude that Sy. No.201/2 was part of Sy. No.47/1 and the same was sub-divided into Sy. Nos.47/1A & 47/1B.
16. As rightly pointed out by the learned Counsel for the respondent referring to the judgments of the Apex Court, a revenue record cannot form basis for the title to the property. In the instant case, what is worse is that RSA 164/2011 -17- the revenue entries in Ex.P-10 on which reliance is placed by the appellant are not preceeded by any mutation proceedings and the entries are not certified mutation entries. Such revenue records do not warrant presumption as per Section 133 of the Karnataka Land Revenue Act. Only those entries which have been lawfully entered will have statutory presumption. Both the courts below while recording the finding that the plaintiff had failed to establish his case, have categorically found that the defendant having produced documents at Exs.D-1 to D-24, has shown that he purchased the suit schedule property from its previous vendors and that he has been in possession and enjoyment of the same.
17. The appellant has himself produced Ex.P-35 which is the RTC extract pertaining to Sy. No.201/2 standing in the name of the plaintiff - N.Sidda Reddy which pertains to the year 1984-85. No document is produced for the subsequent years to show that Sy. No.201/2 ceased to be in existence and that the land purchased by the RSA 164/2011 -18- appellant as per Ex.P-1 was no longer found to be in existence in Sy. No.201/2. If the plaintiff were to show that Sy. No.201/2 is no longer in existence and that he has lost his claim for the extent of land that is reflected in Ex.P-1 - sale deed which he has purchased at an undisputed point of time during 1965, then there would have been some need for a further probe in the matter. Plaintiff has not made any endeavour to place before the courts below the revenue records of Sy. No.201/2 subsequent to the year 1984-85 to disclose that the said survey number was no longer available or was not existence. In fact, Counsel for the respondent vehemently contends that even as on today Sy. No.201/2 exists and the name of the appellant is recorded as owner to the extent purchased by him. It is unnecessary to deal with this argument any further. Suffice to observe that plaintiff has failed to establish that there is non- consideration of any material document produced by him. Unless the plaintiff establishes that Sy. No.201/2 ceased to exist because it was re-numbered as Sy. Nos.47/1 and that Sy. No.47/1 was further bifurcated RSA 164/2011 -19- into Sy. Nos.47/1A & 47/1B, question of undertaking any exercise based on the index of lands, revenue entries or the survey sketch which are not preceeded by any order passed as per the provisions contained under the Karnataka Land Revenue Act, particularly Sections 128 & 129 would not arise. Therefore, the substantial question raised for consideration at Sl. No.1 is answered accordingly, holding that the index of land and the revenue records including the survey sketch do not in any manner come to the aid of the plaintiff and the courts below have rightly held that the plaintiff has not established his case.
18. Similarly as regards the second substantial question of law framed by this Court, it is clear from the concurrent findings recorded by both the courts that findings are recorded based on the documents produced by both the parties after appreciating them in the wake of the oral evidence adduced. As already held by me, the survey sketch and the other revenue records cannot be given precedence over the documents of title of both the RSA 164/2011 -20- plaintiff and the defendant. The document of title Ex.P-1 on which the plaintiff has placed reliance does not lend support to hold that he has become the owner of Sy. No.47/1B. Similarly, the documents of title produced by the defendant establishes that he is the owner of Sy. Nos.47/1A & 47/1B. The defendant's title is traceable to Sy. No.47/1 which was held by the family of his vendors, whereas the document of title of the plaintiff and his predecessor in interest only point out his title on Sy. No.201/2 and there is no link for the claim made by the plaintiff that the land was converted into Sy. No.47/1 at any point of time in the past. Therefore, even the second substantial question of law raised is also answered in favour of the defendant and against the plaintiff- appellant.
19. In the result and the foregoing, this appeal fails and the same is dismissed with costs.
Sd/-
JUDGE VR/KK