The General Manager vs Smt. Diana Roch
2022 Latest Caselaw 5986 Kant

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

         DATED THIS THE 4TH DAY OF APRIL, 2022

                         BEFORE

           THE HON'BLE MR.JUSTICE R. NATARAJ

             R.S.A. NO. 698 OF 2019 (DEC)
BETWEEN:

      THE GENERAL MANAGER
      KARNATAKA STATE FINANCIAL CORPORATION,
      HEAD OFFICE, NO.1/1, THIMMAIAH ROAD,
      NEAR CONTONMENT RAILWAY STATION,
      BANGALORE-560060.
                                           ...APPELLANT
(BY SRI.B.N.VINOD KUMAR, ADVOCATE )

AND:

1.     SMT. DIANA ROCH,
       W/O LATE VALERIAN ROCH,
       AGED ABOUT 50 YEARS,

2.     BENEDICTA ROYSTON,
       S/O LATE VELERIAN ROCH,
       AGED ABOUT 23 YEARS,

3.     BRENDEN ANTONY ROCH,
       S/O LATE VELERIAN ROCH
       AGED ABOUT 20 YEARS,

       ALL ARE RESIDING AT SAMETHADKA,
       PUTTUR KASABA VILLAGE,
       PUTTUR TALUK, D.K.DISTRICT-574202

4.     THE STATE OF KARNATAKA,
       REPRESENTED BY
       DEPUTY COMMISSIONER,
       D.K.DISTRICT,
       MANGALORE-575001
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5.      THE THASILDAR
        PUTTUR, D.K-574201

6.      THE ASSISTANT COMMISSIONER,
        PUTTUR, D.K-574201

7.      JOSEPH ROCH,
        S/O ANTONY ROCH,
        RESIDING AT PAPE MAJALU,
        ARIADKA VILLAGE,
        PUTTUR TALUK,
        D.K.DISTRICT-574223.
                                                      ...RESPONDENTS

        THIS R.S.A. IS FILED UNDER SECTION 100 OF CODE OF
CIVIL   PROCEDURE,       1908    AGAINST        THE   JUDGMENT       AND
DECREE DATED 02.01.2019 PASSED IN R.A.NO.5/2017 ON THE
FILE OF THE PRL.SENIOR CIVIL JUDGE AND A.C.J.M, PUTTUR
TALUK, D.K, ALLOWING THE APPEAL AND SETTING ASIDE THE
JUDGMENT       AND    DECREE    DATED      19.01.2017       PASSED    IN
O.S.NO.160/2016 (OLD O.S.NO.185/2011) ON THE FILE OF THE
ADDL. CIVIL JUDGE AND JMFC, PUTTUR, D.K.


        THIS R.S.A. COMING ON FOR ORDERS THIS DAY, THE
COURT DELIVERED THE FOLLOWING:


                            JUDGMENT

        This    appeal     is   filed    by     the   defendants      in

O.S.No.160/2016          challenging      the    divergent     opinion

recorded by the First Appellate Court in R.A. No.05/2017

by which it reversed the judgment and decree in

O.S.No.160/2016 and declared that the plaintiff is the

owner of the suit property and directed the deletion of the

entries in column No.11 of the revenue records creating

charge in favour of the defendant No.4.

2. The land in question is Sy.No.312/7A1 (Old

No.312/7P2) measuring 22 cents of Puttur Kasaba village

which was owned and possessed by the mother of the

plaintiff Mrs. Benedict D'Souza. She had bequeathed the

said property in favour of her two sons namely Mr.Joseph

Roch and the plaintiff in terms of a Will dated 30.08.1997.

She later died on 10.09.1997. Thus the plaintiff and his

brother jointly succeeded to the property. However the

entries in the revenue records were entered in the name of

Mr.Joseph Roch. The plaintiff and his brother partitioned

the property on 22.07.2008 in terms of which 11 guntas

was allotted to the share of the plaintiff shown as A

schedule, while 11 guntas was allotted to Mr.Joseph Roch,

shown as B schedule to the partition deed. He claimed that

an entry was made in column No.11 of the RTC that the

property that felt to his share was mortgaged to the

defendant No.4, but in fact, the loan was raised by his

brother-Mr.Joseph Roch in respect of his property.

Therefore, the plaintiff filed an application requesting the

Tahasildar to delete the entries in column No.11 in so far

as his extent of land was concerned. This was not

considered which compelled the plaintiff to approach the

superiors in the department of revenue, which was

rejected. Consequently the plaintiff filed the present suit

for declaration of title and for mandatory injunction

directing the defendant Nos.2 and 3 to delete the entries

made in column No.11 of RTC.

3. The respondent No.4 contested the suit and claimed

that suit was not maintainable and also denied the

ownership of the plaintiff and claimed that it was not

bound by the partition deed entered into between the

plaintiff and his brother Mr.Joseph Roch (defendant No.5).

Based on these contentions, the Trial Court framed the

following issues;

i. Whether the plaintiff proves that he is the absolute owner of the suit property? ii. Whether the suit is bad for non joinder of necessary parties?

iii. Whether plaintiff is entitled for the reliefs as claimed in the plaint?

iv. What order or decree?

4. The GPA holder of the plaintiff was examined as

P.W.1 and he marked documents as Ex.P.1 to Ex.P.14. The

defendant on the other hand did not lead any evidence.

5. Based on the oral and documentary evidence, the

Trial Court held that the parties being Christians, they

must have obtained a probate of the Will executed by his

mother. It held that since the plaintiff had not proved

execution of the Will, he cannot be declared to be the

owner of the suit property. It also held that the partition

deed at Ex.P.14 was much later than the mutation entries

in MR.No.44/1998-99 and therefore the partition deed was

designed to defeat the interest of the defendant No.4

which had taken steps to recover the loan by proceeding

against the mortgaged asset and therefore the suit was

not maintainable and hence dismissed the suit.

6. An Appeal preferred by the plaintiff before the First

Appellate Court was entertained and the First Appellate

Court held that the plaintiff and his brother were joint

owners of 22 cents of land which was divided on

22.07.2008. It also held that what was mortgaged to the

defendant No.4 by Mr.Joseph Roch was only 11 cents of

land owned and not the property that was owned by the

plaintiff and hence allowed the appeal and decreed the

suit. Being aggrieved by the aforesaid judgment and

decree the defendant No.4 has filed this appeal.

7. Learned counsel for defendant No.4 contended that

the suit was not maintainable as there is no cause of

action for filing the suit. He submitted that the proceeding

was initiated only against 11 cents of land that was owned

by Mr.Joseph Roch and not against the suit property which

fell to the share of the plaintiff in terms of the partition

dated 22.07.2008. Therefore he submitted that there is no

cause for the plaintiff to approach the Court and seek for

the reliefs.

8. The submission of the learned counsel is highly

appreciated since he has fairly accepted the fact that 11

cents of land that was allotted to the share of the plaintiff,

in terms of the partition deed dated 22.07.2008 was not

the subject matter of the mortgage and that no proceeding

was initiated against it. The proceeding initiated by

defendant No.4 was only in respect of 11 cents of land that

fell to the share of Mr.Joseph Roch, which was identified as

A schedule in the partition on 22.07.2008. In that view of

the matter, since the defendant No.4 had acknowledged

the ownership of the plaintiff in respect of suit property but

alleged that it was not bound by the partition deed dated

22.07.2008, it is apparent that there was a palpable cause

of action and the plaintiff had to protect his possession in

respect of the property that fell to his share. Since the

defendant No.4 has accepted that the suit property was

not proceeded against and that it has no interest what so

ever in the suit property, the judgment and decree passed

by the First Appellate court deserve to be upheld. Hence

the appeal lacks merit and is dismissed.

Sd/-

JUDGE

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