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10. In the proceedings before the Revenue Court, the mutation entries being made in the name of the first defendant on the death of Rama Naik. The title was never in dispute and it was never denied and therefore, the suit filed by the plaintiffs for declaration is in time and rightly, the Trial Court has held that it is not barred by limitation. He contends that plaintiffs are in possession of the properties even to this date. Therefore, he did not seek the relief of possession, which case has been accepted by the Trial Court. Therefore, the contention that the suit is filed without seeking the relief of possession is not maintainable and is without any substance. The mutation entries on the face of it shows that it is illegal. The presumption of possession under Section 133 of the Karnataka Land Revenue Act is violated only when the mutation entry is made after following the procedure prescribed under the Land Revenue Act. In the absence of showing the interest in the properties and the procedure not being followed, the defendants are not entitled to any presumption under Section 133 of the Act. The defendants are claiming title to the property by survivorship and claiming title through mutation entries, then their entry into the land cannot be said to be adverse to the interest of the plaintiffs. They are claiming title by virtue of the mutation entries in a lawful manner. Therefore, the plea of adverse possession set out is contrary to the material on record and rightly, the Trial Court declined to entertain the suit of the plaintiffs and therefore, he submits that the judgment and decree of the Trial Court cannot be found fault with.

Therefore, it is clear, a reading of the entire Para makes it clear the suit land belongs to Rama Naik @ Thotya Naik. He had not paid the land revenue. The revenue authorities were about to bring the land for public auction to collect the land revenue. At that stage, the mother-in-law of the first defendant paid the land revenue and thus, requested to mutate the land in the name of the first defendant. The said mutation entry is produced as Ex.P5 by the plaintiff and Ex.D8 by the defendants. A reading of the said orders shows that khatha of the schedule lands have been made in the name of Smt.Sharadi Bai, wife of Sri.Meetya naik, who is the wife of the son of the deceased Rama Naik @ Thotya naik. In the said order, there is no mention about the mother-in-law of the first defendant paying any land revenue to the Government and thereafter requesting the authorities to mutate the name in the name of the first defendant. The name of the first defendants is mutated treating her as Rama Naik's son's wife. Therefore, the right that the defendants are claiming flows from Rama Naik. This undisputed material on record clearly shows Rama Naik was the owner of the property. The mutation entries stood in his name. He lost all the properties. He was unable to pay the land revenue. The schedule property was about to be brought to sale for recovery of land revenue. At that stage, the mother-in-law of the first defendant paid the land revenue and prevented the property to be sold in public auction. Therefore, the title of Rama Naik to the schedule property is not in dispute at all and that title flows from an order passed by the Government conferring title on him in a public auction. In so far as non-production of the said order, it is the title deed, in this case, the plaintiffs have examined one Sri.Gurumurthy as PW-2. He produced the mutation register of Ghantapura. After looking into the said document, he deposed that for Sy.Nos.61 & 61, the owner is Rama Naik @ Thotya Naik. After referring to Ex.P8, he has stated in the said order, it is not mentioned that the property was brought to sale for non-payment of land revenue. He also deposed that when the present khathedar dies within a year, an application is to be made for mutating the name. After an application is filed beyond one year, he has to pay fine. After receipt of such an application, the Village Accountant has to submit a report in Form No.12. Thereafter, in Form No.21, public notice would be published in the Taluk Office and notice would be sent to the concerned. Thereafter, the Village Accountant would request them to produce the death certificate and the geneology family history. If no objection is received within 30 days and the mutation order will be passed. In the cross-examination, all that has been elicited is the mutation entries in respect of the suit properties are made in accordance with law.

14. Point No.2: The suit for declaration of title is to be filed within three years when the right to sue first accrues. Article 58 is the relevant article. The right to sue first accrues when the title of the parties seeking for declaration is denied. In the instant case, from 1969 upto 2001, when the mutation entry was made in the name of the first defendant, there was no dispute at all. The dispute arose for the first time in the year 2001 when an application is given by the plaintiffs to cancel the mutation entry in the name of the first defendant and to make the mutation entry in their name. The said request was rejected by the Tahsildar on 22.05.200. The appeal preferred against the same before the Assistant Commissioner came to be dismissed on 31.07.004. The revision petition preferred before the Deputy Commissioner came to be dismissed on 9.08.005. The suit for declaration is filed on 16.09.005.

But in the instant case, it is a incorrect statement made which is admitted by the defendant in the oral evidence. First defendant is not the wife of the son of Rama Naik. First defendant is the wife of son of the brother of Rama Naik and therefore, under no circumstances she would acquire any right in the property of Rama Naik. Therefore, the contention of the plaintiffs that the first defendant and the second defendant in collusion with the Government officials clandestinely behind the back of the plaintiffs got this mutation entry made is fully substantiated by the material available in the order itself. If an entry is made in favour of a person who had not acquired any interest in the property, that entry cannot be relied upon as proof of possession of the property. Admittedly, Rama Naik was the Khathedar. It is he who was the owner of the property and after his death, it is his sons who are the plaintiffs of this case who are entitled to the mutation entry in this case. Because of poverty and illiteracy, they have not taken any steps to get the mutation entries in their name. Their right to the property is not extinguished. In the absence of any acceptable positive evidence to show that the defendants are in possession of the property, the presumption is, owner continues to be in possession. Therefore, all the records produced by the defendants are made on the basis of Ex.P8 which is shown to be illegal. Those documents would not prove that the defendants are in possession of the properties either on the date of filing of the suit or before filing of the suit. Rama Naik is the owner of the property in whose name mutation entries was made, who was cultivating the land till his death. After his death, his wife and his children would be entitled to the said property who is deemed to be in possession of the schedule property. Therefore, the argument that the suit filed without seeking the relief of possession for mere declaration is not maintainable cannot be upheld. For the same reason, when the defendant has not shown to be in possession of the property, his plea that he has perfected his title by adverse possession also falls to ground. Even otherwise, the origin of the possession of the defendants is in Ex.P8. At the inception, there was no adverse interest in getting into possession. The first defendant is deemed to be in possession lawfully and they continues to be in lawful possession and therefore, it does not become adverse possession at all at any point of time. Therefore, the Trial Court has rightly held that the defendants have failed to prove the adverse possession also. In that view of the matter, we do not se any merits in the appeal. Accordingly, appeal is dismissed.