Karnataka High Court
Sri Maranna vs Thipperangappa on 25 October, 2023
Author: H.P. Sandesh
Bench: H.P. Sandesh
1
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 25TH DAY OF OCTOBER, 2023
BEFORE
THE HON'BLE MR. JUSTICE H.P. SANDESH
R.S.A. NO.124/2007 (DEC/INJ)
BETWEEN:
SRI MARANNA
SINCE DEAD REPRESENTED BY HIS LRS
1. SRI RAMAKRISHNAPPA
S/O LATE MARANNA
AGED ABOUT 65 YEARS
2. SRI ERANNA S/O LATE MARANNA
SINCE DEAD REPRESENTED BY HIS LRS
a) SMT. JAYAMMA
W/O LATE ERANNA, MAJOR
b) SMT. RATHNAMMA
W/O LATE ERANNA, MAJOR
c) SMT. PAVITHRA
D/O LATE ERANNA, MAJOR
d) SMT.PREMA
D/O LATE ERANNA, MAJOR
e) SMT.MAHALAKSHMI
D/O LATE ERANNA, MAJOR
f) SMT.VARALAKSHMI
D/O LATE ERANNA, MAJOR
2
g) SRI SRINIVASA S/O LATE ERANNA
AGED ABOUT 17 YEARS
SINCE MINOR,REPRESENTED
BY HIS NATURAL GUARDIAN -
MOTHER RATHNAMMA
3. SRI M.MADUVAIAH S/O LATE MARANNA
AGED ABOUT 59 YEARS
ALL ARE RESIDING AT
YADALADAKU VILLAGE
HULIKUNTE HOBLI, SIRA TALUK
TUMAKURU DISTRICT. ...APPELLANTS
[BY SRI K.N.NITISH, ADVOCATE FOR
SRI K.V.NARASIMHAN, ADVOCATE]
AND:
1. THIPPERANGAPPA
SINCE DEAD REPRESENTED BY HIS LRS
1(a) SMT.GOWRAMMA
W/O LATE THIPPERANGAPPA
SINCE DEAD BY HER LRS
RESPONDENT NO.1(c) TO 1(h)
WHO ARE ALREADY ON RECORD
1(b) SMT. JAYAMMA
D/O LATE THIPPERANGAPPA
SINCE DEAD BY HER LRS
RESPONDENT NO.1(a), 1(c) TO 1(h)
WHO ARE ALREADY ON RECORD
1(c) SRI KESHAVAMURTHY
S/O LATE THIPPERANGAPPA
AGED ABOUT 63 YEARS
3
1(d) SRI GOVINDAPPA
S/O LATE THIPPERANGAPPA
AGED ABOUT 60 YEARS
1(e) SRI RAMAKRISHNA
S/O LATE THIPPERANGAPPA
AGED ABOUT 58 YEARS
1(f) SMT. SHARADAMMA
W/O LATE THIPPERANGAPPA
AGED ABOUT 55 YEARS
1(g) SRI MUDALAGIRIGOWDA
S/O LATE THIPPERANGAPPA
AGED ABOUT 51 YEARS
1(h) SRI RANGANATHAIAH
S/O LATE THIPPERANGAPPA
AGED ABOUT 48 YEARS
ALL ARE RESIDING AT
YADALADAKU VILLAGE
HULIKUNTE HOBLI, SIRA TALUK
TUMAKURU DISTRICT-572 101. ... RESPONDENTS
[BY SRI D.R.RAVISHANKAR, SENIOR ADVOCATE FOR
SRI SIRI RAJASHEKAR, ADVOCATE FOR R1(c & d) & R1(f to h);
SRI KESHAV R. AGNIHOTRI, R1(e)]
THIS R.S.A. IS FILED UNDER SECTION 100 R/W ORDER 42
OF CPC, AGAINST THE JUDGMENT AND DECREE DATED
27.09.2006 PASSED IN R.A.NO.121/2005 ON THE FILE OF THE
CIVIL JUDGE (SR. DN.), SIRA, DISMISSING THE APPEAL FILED
AGAINST THE JUDGMENT AND DECREE DATED 25.11.1997
PASSED IN O.S.NO.198/1991 ON THE FILE OF THE CIVIL JUDGE
(JR. DN.), SIRA.
4
THIS R.S.A. HAVING BEEN HEARD AND RESERVED FOR
JUDGMENT ON 06.10.2023 THIS DAY, THE COURT
PRONOUNCED THE FOLLOWING:
JUDGMENT
Heard the learned counsel for the appellants and also the counsel appearing for the respondents.
2. This second appeal is filed challenging the concurrent finding of the Trial Court and First Appellate Court declaring the plaintiff is the owner of the suit schedule property and granted permanent injunction against the defendant in O.S.No.198/1991 and confirmed the judgment and decree in R.A.No.121/2005.
3. The factual matrix of the case of the plaintiff before the Trial Court that suit land bearing Sy.No.139 total extent is 25 acres 38 guntas including kharab of 10 guntas was the ancestral property of the plaintiff. Out of the said land, the plaintiff's father had sold 2 acres 20 guntas to defendant's father on its western side in the year 1942. Remaining land continued to be in exclusive possession and enjoyment of the plaintiff's father. The plaintiff is the only son to his father. After death of plaintiff's father, plaintiff is continued to be in possession and enjoyment 5 of the suit schedule property. The khata of the suit land continued to be in the name of the plaintiff's father Mudlagiriyappa and he paid the tax during his life time and after his death, plaintiff has paid the land revenue, whereas, the remaining area was given as Sy.No.139/1A and property which was sold in favour of the defendant's father the Sy.No.139/1B was allotted. The defendant in collusion with revenue authorities got written the pahani in his name at the instance of the Tahsildar and the same was challenged and Assistant Commissioner has set aside the order and the same was questioned before the Deputy Commissioner and Deputy Commissioner reversed the same and the same has been challenged in the writ petition and in the writ petition an observation is made that parties to approach the Civil Court for declaring their rights. It is the case of the plaintiff that based on the said entries, defendant is interfering with possession of the plaintiff.
4. The defendant appeared through counsel and filed written statement admitting that father of the defendant had 6 purchased 2 acres 20 guntas in the year 1940 and denied all other averments made in the plaint.
5. The defendant contend that suit schedule property is his ancestral property and his father was the owner of Sy.No.139/1A measuring 18 acres 27 guntas. During the life time of the defendant's father, defendant separated from the family which is evidenced by the Registered Partition Deed dated 15.11.1960 and 3 acres 34 guntas in Sy.No.139/1A was allotted to the share of the defendant and the remaining land was retained by his father. The land that was allotted to the share of defendant had partitioned and is numbered as Sy.No.139/1B. After the death of his father, the defendant and his brother succeeded to the suit property and they have been in possession and enjoyment of the suit property. The plaintiff in collusion with revenue authorities got his name entered in column Nos.9 and 10 of the pahani for the year 1975-76 and hence, proceedings are initiated before the Deputy Commissioner. It is also contended that the plaintiff has filed the suit against the defendant in O.S.No.2/1985 for the relief of declaration and 7 injunction and the plaint was returned to present the same before the competent court of law. When the plaintiff has filed the same suit alleging that defendant has denied his title for the year 1991 and as such, the suit is not maintainable. It is also contended that suit is barred by limitation under Section 58 of Limitation Act. Alternative the defendant contend that he is perfected his title to the suit property by adverse possession for having knowledge the same for more than 12 years uninterruptedly, openly as of right and adverse to the interest of the real owner along with his brother.
6. The Trial Court having considered the pleadings of the plaintiff and defendant framed total 8 issues and allowed the parties to lead evidence. The plaintiff examined himself as PW1 and also examined two witnesses as PWs.2 and 3 and got marked Exs.P1 to P40. In rebuttal, the defendant examined himself as DW1 besides examined DW2 and produced documents Exs.D1 to D10. The Trial Court having considered the material on record comes to the conclusion that plaintiff has proved the title and has been in possession and enjoyment of the suit 8 schedule property and defendant without any semblance of right interfering with possession. The contention of the defendant is negatived and granted the relief. Being aggrieved by the said judgment and decree, an appeal is filed in R.A.No.121/2005 and First Appellate Court considering the grounds urged in the appeal, formulated the point whether the Trial Court committed an error while appreciating the oral and documentary evidence, whether the suit is barred by limitation and whether judgment and decree requires interference. The First Appellate Court on reconsideration of oral and documentary evidence and the grounds urged in the appeal, dismissed the appeal in coming to the conclusion that, Trial Court has not committed any error. Hence, the present second appeal is filed.
7. The main contention urged in the second appeal by the defendant/appellant that both the Courts below committed an error in granting the relief of declaration and injunction based on the title deeds. Both the Courts grossly erred holding that respondents' suit in O.S.No.198/1991 was within the period of limitation and the same relief was sought in O.S.No.2/1985 and 9 the same was returned with a direction to present the same before the appropriate Court and no liberty was given. However, suit was filed after six years from the date of returning of the plaint. Both the Courts failed to take note of the same and committed an error in coming to the conclusion that suit is in time. Both the Courts below not understood Ex.P40 which is a material evidence, wherein late Sri.Madappa father of the appellant has also purchased item No.4 which is a portion in Sy.No.No.139 of Yedaladaku village for the purpose of pathway in addition to purchase of 2 acres 20 guntas and therefore respondent could not have made any claim. The counsel also farmed the substantial questions of law, whether the relief in suit, which is barred by law of limitation can be granted by the Court by way of condonation of delay and whether there can be re-appraised of evidence in the second appeal, which is not properly considered by the Court below. This Court having considered the material on record at the first instance framed substantial questions of law i.e. on 3.4.2008;
"Whether the Court below was justified in granting a declaration on the basis of preliminary 10 records without finding out the extent of land granted in favour of the plaintiff's father?"
8. This Court also re-framed the substantial questions of law on 19.10.2016:
i). Whether the suit was barred by limitation?
ii) Whether the proceedings of O.S.No.198/1991 on the file of Civil Judge (Jr.Dn.) Sira, can be considered as continuation of the O.S.No.2/1985 on the file of same Court?
iii) Whether the lower appellate Court was justified in condoning the delay?
iv) Whether the Courts below were justified in acting on the revenue entries?
9. The counsel during his arguments vehemently contend that both the Courts have not considered the material in a proper perspective and at the first instance plaint was returned on 15.3.1989 and represented on 2.3.1991 and the same was returned on 30.5.1991 and represented on4.6.1991. The very contention of the plaintiff before the Trial Court that it was the ancestral property. The counsel also would submit that plaintiff's father had sold 2 acres 20 guntas to the father of the defendant. 11 The counsel would vehemently contend that the property belongs to the defendant's family and the same is an ancestral property and there was a partition between father of the defendant and defendant and he got 3 acres 34 guntas in the said partition. The counsel would vehemently contend that plaintiff has not produced any title, but Trial Court relied upon the revenue entries, but the documents were standing in the name of the defendant in the revenue records and though the transfer of property in favour of the defendant in terms of Ex.D1 and the same was set aside by the Assistant Commissioner and the same was challenged before the Deputy Commissioner and the Deputy Commissioner reversed the same and the same is challenged in the writ petition and directed the plaintiff to approach the Court for declaration of his title. The Trial Court mainly relies on Exs.P12 and P17 preliminary records as Darkast and plaintiff has not produced the grant order in the absence of producing the grant order, the Trial Court ought not to have granted the relief of declaration. Ex.P40 is the sale deed of plaintiff's father executed in favour of defendant's father on 30.6.1942. The said sale deed not tallies with the plaint 12 schedule. The counsel would vehemently contend that the defendant produced several documents particularly Ex.D1 clearly discloses that the same is cultivated by defendant's father and Ex.D2 is the reversed order of the Assistant Commissioner by the Deputy Commissioner. Ex.D4 is the index of land. The appellant also produced the additional documents and the same is not challenged. The counsel would vehemently contend that original substantial question of law and substantial question of No.4 are to be considered in this appeal and both in respect of title is concerned.
10. The counsel in support of his argument also relied upon the judgment reported in AIR 2014 SC 937 and brought to notice of this Court paragraph Nos.15 and 20, wherein the Apex Court held that in a suit for declaration of title and possession could succeed only on the strength of its own title and that could be done only by adducing sufficient evidence to discharge the onus on it, irrespective of question whether the defendants have proved their case or not.
13
11. In paragraph No.20, the Apex court observed that, even if the entries in the Record of Rights carry evidentiary value, that itself would not confer any title on the plaintiff on the suit land in question.
12. The counsel also relied upon the judgment reported in AIR 2013 KAR 37 and brought to notice of this Court paragraph Nos.17 and 18, wherein also observed that, mutation entries and the records evidencing the same are not documents of title. In other words, the revenue record is not a document of title. Mutation being only for fiscal purpose of collection of land revenue from the person in whose name the revenue record stands. The guiding factor in recording mutation is to show who is in possession. If the mutation entry is made in accordance with law, there is a presumption in favour of the person in whose name the mutation entry stands to the effect that he is in possession of the said property. That by itself is not sufficient to hold that he is the owner of the property. It is not proof of title. Therefore, the Civil Courts cannot declare title in a person on the basis of the aforesaid entries in the revenue records or on the 14 basis of the revenue records. This Court also observed that when the plaintiff has not produced documents of title, the Civil Court had no jurisdiction to declare the title to the immovable property in favour of the plaintiff.
13. The counsel also relied upon the judgment reported in MANU/KA/717/2021 and brought to notice of this Court paragraph Nos.22 to 24 wherein also discussed with regard to Section 34 of the Specific Relief Act, discretion of Court as to declaration of status of right. Any person entitled to any legal character or to any right as to any property, may institute a suit against any person denying or interested to deny, his title to such character or right. When once it is demonstrated that plaintiffs were not in possession of the suit schedule property as on the date of suit, question of invoking Section 34 and granting the relief of declaration does not arise.
14. Per contra, the counsel appearing for the respondent in his argument would contend that both the Courts have taken note of the documents Exs.P12 and 17 and those documents evidenced the fact that a grant was made in favour of the 15 plaintiff's father and there is an entry in the said document. The counsel also would vehemently contend that Ex.P40 is very clear that 2 acres 20 guntas was purchased by the defendant's father from the plaintiff's father and once he admits the title and purchased the property, now he cannot contend that plaintiffs are not having any title over the property. The counsel also would vehemently contend that Ex.P7 also discloses that 8 acres of land was sold by the mother of the plaintiff and also there is a clear admission on the part of the defendant that he is in possession only to the extent of 2 acres 20 guntas. Exs.P12 and 17 are not disputed. The counsel would vehemently contend that total grant was 25 acres 38 guntas and 2 acres 20 guntas out of the said property, the same is purchased by the defendant's father and now he cannot contend that no title and he is estopped from taking such a defence.
15. The document Ex.P6 is also very clear that subsequent to purchase, property was transferred in favour of the defendant's father in MR No.1/42-43 and also 8 acres was sold by the plaintiff's father in favour of Hombalamma i.e. on 16 23.12.1947 and to that effect MR 5/47-48 also effected and remaining land is the suit schedule property. Though defendant contend that the said property is an ancestral property, no documents are produced before the Court and only relies upon the index of land Ex.D3. The very document shows reference of sale made in favour of defendant's father. In the cross of D.W.-1 he categorically admitted the extent of property was purchased and having considered all these materials only the Trial Court as well as the First Appellate Court given the reasoning and rightly decreed the suit.
16. In reply to the arguments, the counsel for the appellants would vehemently contend that, no proper pleadings in the plaint about basis for claim and no documents are produced and an application is filed under Order 41 Rule 27 i.e. survey records and the same has not been challenged. Ex.D4 is in respect of respect of Sy.No.139/1A to show that 14 acres and entry of the defendant is very clear in the year 1975-76 in respect of the property and revenue documents of the defendant 17 are not challenged and no document of darkest, under the circumstances cannot claim the relief of declaration.
17. Having heard the respective counsel and also on perusal of the material available on record, it is the claim of the plaintiff that total extent of the property Sy.No.139 measuring 25 acres 38 guntas including 10 guntas of kharab. It is also pleaded that out of that 2 acres 20 guntas were sold in favour of the defendant's father in the year 1942 and the same is not disputed by the defendant. No doubt in the plaint note pleading with regard to the sale of the property by the mother of the plaintiff to the extent of 8 acres and it is the claim of the plaintiff also that property was granted by darkast. It is also important to note that in order to substantiate the claim of the plaintiff, plaintiff relied upon the document Ex.P17. On perusal of Ex.P17, preliminary record, a reference is made mentioning the name of the father of the plaintiff and in column No.10, nature of the property specifically mentioned that by way of darkast and also in Ex.P12 name of father of plaintiff is found in column No.4 i.e. Mudlagiriyappa and in column No.9 and 10 it is specifically 18 mentioned that the property came to the plaintiff by darkast and these documents evidence the fact that there was a darkast in favour of Mudalagiriyappa and survey sketch Ex.P14 discloses with regard to bifurcation of the property and Ex.P40 also discloses that a sale was made in favour of defendant's father on 30.06.1942 and hence, it is clear that grant was made prior to 1942. It is also important to note that, another 8 acres of land was also sold by the mother of the plaintiff in favour of Hanumanthappa in the year 1947. It is also important to note that defendant claims that the same is an ancestral property of the defendant. In order to substantiate the said contention, source of document is not placed before the Court that property belongs to the defendant's ancestors and mainly relies upon Ex.D1 the order passed by the Tahsildar and also order passed by the Deputy Commissioner i.e. Ex.D2 and Ex.D3 though relied upon, the same discloses with regard to having purchased the property in the year 1942 and MR.1/42-43 is found and the same is in respect of purchasing of the property in the year 1942 and no doubt index of land is relied upon which is marked as Ex.D4 and source of title is not mentioned in this document. No 19 doubt other documents, tax paid receipts are produced before the Court. In order to substantiate the property belongs to the ancestors also not produced any document. These are the materials are taken note of by the Trial Court as well as the First Appellate Court and Trial Court taken note of these documents and rightly comes to the conclusion that defendant's though claim title contending that it is an ancestral property, not substantiated the same. The Trial Court taken note of the document Ex.P12 and Ex.17 in paragraph No.10 and also father of the plaintiff Mudalagiriyappa had sold 2 acres 20 guntas on western side through registered sale dated 30.6.1942 and the same has not been denied by the defendant having purchased the property and also plaintiff's father when he sold the property Ex.P40 discloses the same and based on the same mutation also entered in the revenue records in terms of Ex.P6. Ex.P10 is the copy of the mutation register. After the death of the plaintiff's father, his mother Hombalamma sold 8 acres through registered sale deed in favour of Hanumanthappa and the same is evidenced from Ex.P7 and the same is also admitted by the defendant. The defendant except relying upon the entries found 20 in column Nos.9 and 12 in the revenue records not placed any material before the Court and the said fact is also taken note of by the Trial Court and Ex.P12 Preliminary record pertaining to land in Sy.N.139 clearly indicate that plaintiff's father got the entire land 25 acres 38 guntas under darkast and he was in possession and enjoyment of the same. Sale deed dated 30.6.1942 in favour of defendant's father indicate that plaintiff's father had sold 2 acres 20 guntas on the western side. The Trial Court also taken note of the RTC of the year 1968-69, 1982-83, 1985-86 in column Nos.9 and 12 the name of the plaintiff's father was written and it was rounded off and the name of defendant's father was written. The defendant has not produced any documents to show that on what strength the name of his father was written in the RTC extract pertaining to the suit land and also observed that a mischief was committed by the revenue authorities and compelled the plaintiff to approach the Court to establish the title and hence, granted the relief of decree of declaration.
21
18. The First Appellate Court having reassessed the material on record in keeping the grounds urged in the appeal memo and also the contentions of the respective counsel taken note of the fact that property was sold in favour of father of the defendant in the year 1942 and taken note of Exs.P12 and 17 preliminary records and also taken note of Ex.P40 certified copy of registered sale deed dated 30.06.1942 and also taken note of mutation register extract at Exs.P6 and P10 and even after the death of Mudalagiriyappa and his wife Hombalamma sold 8 acres of land in favour of one Kammar Hanumanthappa and found the entry in terms of Ex.P7. In turn Kammar Hanumanthappa sold 7 acres of land in favour of Chikkaveerappa, Krishnaiah in the year 1968 and also taken note of Exs.P19 to 37 and oral evidence and comes to the conclusion that the Trial Court not committed any error and comes to the conclusion that case of the plaintiff is probable, since defendant has not produced any document with regard to his claim is concerned that suit schedule property is an ancestral property and not committed any error. 22
19. The counsel appearing for the respondent also relied upon the judgment passed in R.S.A.No.1080/2012 dated 20.02.2020 wherein also an observation is made in a suit for declaration and possession, the defendant will have to prove better title than the plaintiff and the same is also applicable to the facts of the case on hand, since though claims that the suit schedule property is an ancestral property, to substantiate the same, no material is placed before the Court. The counsel also relied upon the judgment of the Apex Court reported in (1991) 4 SCC 572 wherein also in paragraph No.9 held that, all that a plaintiff needs to prove is that he has a better title than the defendant. He has no burden to show that he has the best of all possible titles. His ownership is good against all the world except the true owner. The rights of an owner are seldom absolute, and often are in many respects controlled and regulated by statute. The question, however, is whether he has a superior right or interest vis-à-vis the person challenging it. The same is also applicable to the case on hand, since he relied upon the document at Exs.P12, P17 and P40 under which the defendant's father himself has produced the property from the plaintiff's 23 father and claim of the plaintiff's father also the property was allotted under darkast when the defendant's father has purchased the property from the plaintiff's father in the year 1942 itself out of 25 acres 38 guntas of land. Now the defendant again contend that the plaintiff is not having any better title than him and defendant has not relied upon any document before the Court to substantiate his claim that suit schedule property is an ancestral property. No doubt, the counsel appearing for the respondent relied upon several judgments referred supra and brought to notice of this Court paragraph Nos.15 and 20 in the case of Vasavi Co-operative Housing Society Limited and Paragraph Nos.17 and 18 the case of Hullappa Vs. State of Karnataka and also paragraph Nos.22 to 24 in Mariyavva Vs. Satyappa Fakeerawwa Madar case, wherein categorically held that, title deeds must not be the revenue documents. But in the case on hand, I have already pointed out that Ex.P12 and 17 refers Darkast and apart from that the very defendant's father purchased the property from the plaintiff's father in the year 1942 and acted upon. Once he admits the title of the plaintiff's father in the year 1942 to the extent of 2 acres 20 guntas, to the 24 portion of the property which was allotted and also the other documents which have been produced that the plaintiff's mother had sold total 8 acres of land that too in the year 1968 itself and only subsequently the RTC of the plaintiff are rounded off and mentioned the name of the defendant's father and the same is also not based on any material and the same is evident from the record and both the Courts have taken note of the said fact and except getting the entry in the RTC, the defendant has not placed any material before the Court and documents which have been placed before the Court as Exs.D1 to D5 does not disclose any better title than the plaintiff and Exs.D1 and D2 only an order passed by the Tahsildar as well as the Deputy Commissioner and Exs.3 to 5 also not convey any better title in favour of the defendants and these are the aspects has been taken note of by the Trial Court and First Appellate Court and hence, I do not find any error committed by the Trial Court in granting the relief of declaration and injunction in favour of the plaintiff and accordingly I answered substantial questions of law framed by this Court that both the Courts have not committed any error and no merits in the appeal to reverse the finding. 25
20. In view of the discussions made above, I pass the following:
ORDER Regular second appeal is dismissed.
Sd/-
JUDGE AP