Suresh S/O Krishnaji Rao vs Nooral Hassan S/O Khasim Sab
2022 Latest Caselaw 3370 Kant

                                1




          IN THE HIGH COURT OF KARNATAKA
                    KALABURAGI BENCH

     DATED THIS THE 28TH DAY OF FEBRUARY, 2022

                           BEFORE

       THE HON'BLE MR.JUSTICE ASHOK S. KINAGI


                    RSA No.1147/2006

Between:

1.     Suresh S/o Krishnaji Rao,
       Aged about 25 years, Occ: Nil,
       R/o Brestwarpeth,
       Raichur Near Old Osmaniya Market,
       Raichur.

2.     Narasingraj S/o Ranoji Rao,
       Aged about 12 years,
       R/o Brestwarpeth, Raichur,
       Near Old Osmaniya Market,
       Raichur,
       minor under the guardianship of his
       natural father Ranoji Rao,
       R/o Brestwarpeth, Raichur.
                                             ... Appellants

(By Sri R. S.Siddapurkar, Advocate)

And:

Nooral Hassan S/o Khasim Sab,
Aged about 85 years, Agriculturist,
R/o. Raichur, but presently
Residing permanently at
Hyderabad A.P.-500 002.
Since died by his LRs.
                              2




1.   Smt. Zaibunnisa Begum,
     W/o Nooral Hassan,
     Aged 70 years, Occ: Household,
     R/o H.No.9-4-107/1,
     Toli Chowki, Hyderabad-500 002.

2.   Azizul Hassan,
     S/o Late Nooral Hassan,
     Aged 58 years, Occ: Govt. Servant,
     R/o H.No.11-3-543,
     Spl. "B" Class, Mallepally,
     Hyderabad-500 002.

3.   Moinul Hassan,
     S/o Late Nooral Hassan,
     Aged 52 years, Occ: Govt. Servant,
     R/o. H.No.9-4-107/1,
     Toli Chowki, Hyderabad-500002.

4.   Zahoorul Hassan,
     S/o Late Nooral Hassan,
     Aged 50 years, Business,
     R/o H.No.9-4-107/1,
     Toli Chowki Hyderabad-500 002.

5.   Ameenul Hassan,
     S/o Late Nooral Hassan,
     Aged 48 years, Occ: Business,
     R/o H.No.9-4-107/1,
     Toli Chowki, Hyderabad-500 002.

6.   Fareedul Hassan,
     S/o Late Nooral Hassan,
     Aged 43 years, Occ: Business,
     R/o H.No.9-4-107/1,
     Toli Chowki, Hyderabad-500 002.

7.   Ziaul Hasan, S/o Khasim Sab,
     Aged about 59 years,
     Peon and Agriculturist,
     R/o Raichur-584122.
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8.    Farooqui Amina Begum,
      W/o Nooral Hassan
      Aged about 50 years,
      Occ: Household affairs,
      R/o 3-9-30, Baroon Quilla,
      Behind Old Civil Hospital,
      Raichur-584 122.

9.    Syed Shamshul Hassan,
      S/o Nooral Hassan,
      Aged 18 years, Occ: Household,
      R/o 3-9-30, behind Old Civil Hospital,
      Raichur-584 122.
                                                ... Respondents

(By Sri. Rajesh and Rajesh for C/R No.1(C to F);
 By Smt. Maya.T.R., Advocate for R4 to R6)

      This Regular Second Appeal is filed under Section 100
R/w Order 42 Rule 1 of CPC, praying to set aside the judgment
and decree passed by the Additional District Judge and Presiding
Officer, FTC-IV Raichur, dated 07.01.2006      in R.A.No.74/2004
by confirming the judgment and decree passed by the Munsiff,
Raichur in O.S.No.163/1978 dated 17.10.1981 and allow this
appeal.


      This Appeal coming on for final hearing, this day, the
Court delivered the following:-


                         JUDGMENT

This second appeal is filed by the defendant Nos.4

and 5 challenging the judgment dated 07.01.2006 passed

in R.A.No.74/2004 by the Additional District Judge, Fast

Track Court-IV, Raichur confirming the judgment and

decree passed in O.S.No.163/1978 dated 17.10.1981 on

the file of the Munsiff, Raichur.

2. For the sake of convenience, parties are

referred to as per their ranking before the Trial Court.

Appellants are the defendant Nos.4 and 5 before the Trial

Court and respondent Nos.1 to 7 are the legal

representatives of deceased plaintiff. Respondent No.8 is

defendant No.1 and respondent No.9 is defendant No.3

before the Trial Court.

3. Facts giving rise to filing of the appeal briefly

stated are as under: Plaintiffs have filed a suit for

declaration and perpetual injunction. It is the case of the

plaintiffs that plaintiffs are the real brothers inter se.

Defendant Nos.2 and 3 are the sons of defendant No.1 and

defendant Nos.4 and 5 are strangers to the family of the

plaintiffs as well as to the suit properties. It is contended

that plaintiff Nos.1 and 2 are the absolute and exclusive

owners in common of the agricultural land bearing

Sy.No.1231/1 measuring 3 acres 21 guntas and land

bearing Sy.No.1231/2 measuring 4 acres 13 guntas, both

situated within the local limits of Raichur village. These two

agricultural lands are the subject matter of the suit. It is

contended that plaintiff Nos.1 to 2 and their forefathers

wee permanent resident of Raichur. The father of

defendant Nos.2 and 3 and their forefathers were resident

of Koheer village in Bidar District. Father of defendant

Nos.2 and 3 alone who recently came to Raichur as

Sheristedar and settled in Raichur and died in the year

1965. It is contended that originally the suit lands belong

to one Smt. Haleema Bi w/o Shaik Hussain who was the

grandmother of plaintiff Nos.1 and 2 and the said land

devolve on the plaintiff Nos.1 and 2 by way of inheritance.

The said lands are managed and cultivated by the plaintiff

No.1 who is the elder son. The lands are situated in

contiguity of the tank called "Amtalab" and due to over

flowing of the said tank, the water spreads and extends up

to the suit lands and submerge them during the rainy

seasons. Having suffered losses due to loss of crops owing

to submergence in the tank water, the plaintiffs have left

the suit lands fallow since a few years. That accidentally

the name of one of the sons of the plaintiff No.1 happens

to be Muneerul Hasan which is also the name of the

defendant Nos.2 so also the name of the plaintiff No.1 is

identical to the name of the father of the defendant No.2

and 3. The defendant Nos.1 to 3 taking undue advantage

of the similarity of the names and also the absence of

plaintiff No.1 have hatched up a conspiracy against the

plaintiff in order to usurp the suit lands and in furtherance

of the said conspiracy, they made an application for

mutation of suit lands in their names fraudulently

representing that they were only heirs of Pattedar of the

suit land who died about two to three years back. The

mutation was granted in the name of defendant Nos.1 to 3

on 15.03.1973 without any notice or enquiry prescribed

and without the knowledge and behind the back of plaintiff

Nos.1 and 2. Plaintiff No.1 came to Raichur on 15.09.1978

from Hyderabad and heard the rumors that defendant No.2

is trying to execute the sale deed in respect of the suit

land in favour of prospective purchasers. Plaintiff No.1

immediately published a notice in the local daily

newspaper namely "Raichur Vani" on 15.09.1978 with a

warning to the prospective purchasers not to purchase the

suit land, since the said suit land belong to the plaintiffs.

Defendant No.2 sensing immediate likelihood of exposure

of fraud played by him, executed a fictitious sale deed in

respect of suit land in favour of defendant Nos.4 and 5 on

16.09.1978. On the strength of registered sale deed,

defendant Nos.4 and 5 are now trying to assert their title

over the suit schedule property. Hence, cause of action

arose when the plaintiffs came to know of the mutation of

the suit lands in the name of the defendant Nos.1 to 3 and

further on 16.09.1978 when the sale deed was executed

by the defendant Nos.2 and 3 in favour of the defendant

Nos.4 and 5. Hence, the plaintiffs have filed suit for

declaration and cancellation of registered sale deed. The

defendant Nos.1 to 3 filed written statement denying the

averments made in the plaint and the ownership of the

plaintiffs over the suit schedule property. It is contended

that the defendant Nos.1 to 3 are in possession and

cultivating the said land. Hence, prayed to dismiss the suit.

Defendant Nos.4 and 5 have filed written statement

denying the averments made in the plaint and prayed to

dismiss the suit.

4. The Trial Court, on the basis of pleadings of

parties, framed the following issues:

1. Whether the valuation made and Court fee paid for the relief of cancellation of impugned sale deed are proper?

2. Whether the suit is properly filed and presented?

3. Whether the plaintiffs (i) (ii) are owners of the suit lands having inherited from their grandmother namely Haleema Bi?

4. Whether the plaintiffs (i) and (ii) are in the possession of said lands?

5. Whether the defendants have tried to interfere in the said possession of the plaintiffs over the suit lands?

6. Whether the defendants 4 and 5 are protected for the reason that they are bonafide purchaser for value?

7. Whether the sale deed made in favour of defendants 4 and 5 by defendants 2 and 3 is null and void?

8. Whether the plaintiffs can be granted the reliefs prayed for?

9. To what relief the parties are entitled?

5. Plaintiffs, in order to prove their case,

examined plaintiff No.1 as PW.1 and examined three

witnesses as PW.2 to PW.4 and got marked Exs.P.1 to

P.14. On the other hand, defendant No.2 was examined

as DW.1 and three witnesses were examined as DW.2 to

DW.4 and got marked Exs.D.1 to D.7. The Trial Court,

after recording the evidence and considering the material

on record, held that the plaintiffs have proved that the

plaintiffs are the owners of the suit schedule property

having inherited the same from their grandmother namely

Haleema Bi W/o Shaik Hussain and also held that plaintiffs

are in peaceful possession of the said land and further held

that the defendants are trying to interfere in the

possession over the suit land. Further, it held that the

plaintiffs have proved that the sale deed made in favour of

defendant Nos.4 and 5 by defendant Nos.2 and 3 is null

and void and accordingly, decreed the suit of the plaintiffs.

6. The defendant Nos.4 and 5 aggrieved by the

judgment and decree passed by the Trial Court, filed an

appeal in R.A.No.74/2004. The Appellate Court framed the

following points for its consideration:

1. Whether the plaintiffs prove that they are owners of the suit properties?

2. Whether the plaintiffs prove that they were in possession and enjoyment of the suit properties as on the date of suit?

3. Whether the defendant No.4 and 5 prove that they are the bonafide purchaser of the suit properties for value without notice and thereby they are protected under the law?

4. Whether the plaintiffs prove the alleged interference by the defendants?

5. Whether the plaintiffs are entitled to the decree prayed for?

6. Whether the Judgment and decree of the trial Court call for interference of this Court?

7. What order?

7. The First Appellate Court, after re-appreciation

of the evidence on record, answered the points for

consideration and held that plaintiffs have proved that they

are the owners of the suit property and further held that

plaintiffs are in peaceful possession and enjoyment of the

suit property as on the date of the suit. The First Appellate

Court further held that defendant Nos.4 and 5 are not the

bonafide purchasers of the suit property for value without

notice and they are protected under the law. However, the

First Appellate Court held that plaintiffs have proved the

interference by the defendants and further held that

defendant Nos.4 and 5 have failed to prove that judgment

and decree passed by the Trial Court is perverse and

consequently dismissed the appeal. The defendant Nos.4

and 5 aggrieved by the impugned judgment and decree

passed by the courts below filed this second appeal.

8. This Court admitted the appeal on the

following substantial questions of law for consideration.

1. Whether the Courts below were justified in granting a decree for declaration and other reliefs when the plaintiffs had not produced any document to the Court to show that they had title to the property?

2. Whether the evidence in support of the claim has been considered with reference to the 1st substantial question of law?

9. Heard the learned counsel for the plaintiffs and

learned counsel for defendant Nos.4 and 5.

10. Learned counsel for the appellants/defendant

Nos.4 and 5 submits that suit for mere declaration without

there being a title deed is not maintainable. He submits

that plaintiffs have not produced the title deed to show

that the plaintiffs are the owners of the suit schedule

property. Further, he submits that defendant Nos.1 to 3

have filed written statement denying the title of the

plaintiffs over the suit schedule property. The plaintiffs

have not produced the title deed to show that they are the

owners of the suit schedule property, except producing the

copy of record of rights, mutation and tax paid receipts. He

further submits that in view of settled position of law that

in a suit for declaration, plaintiffs are under obligation to

produce the title deed. In the absence of title deed, the

Trial Court has committed an error in declaring the

plaintiffs as owner of the suit schedule property. The

Courts below have committed an error in declaring the

plaintiffs as the owner of the suit schedule property on the

basis of revenue records. Hence, he prayed to allow this

appeal.

11. Per contra, learned counsel for the plaintiffs

submits that the plaintiffs are the owners of the suit

schedule property and they are in possession of the suit

schedule property. Further, plaintiffs have produced the

tax paid receipts and copy of ROR. Hence, she submits

that the Courts below were justified in passing the

impugned judgment and decree and hence, on these

grounds, she prays to dismiss the appeal.

12. Perused the records and considered the

submissions made by learned counsel for the parties. Both

the substantial questions of law are taken up together as

they are interrelated.

13. The plaintiffs have filed the suit for declaration

and injunction against the defendants claiming title, on the

ground that originally property was owned by one Haleema

Bi W/o Shaik Hussain who was the grandmother of the

plaintiffs and the said land devolved upon the plaintiffs

Nos.2 and 3 by way of inheritance and said land was

managed and cultivated by the plaintiff No.1 who being the

elder son. It is contended that one of the sons of plaintiff

No.1 who happens to be one Muneerul Hasan which is also

the name of defendant No.2 and name of the plaintiff is

identical to the name of the father of the defendant Nos.2

and 3. Defendant Nos.1 and 2, taking undue advantage of

the similarity of the names and also absence of plaintiffs,

hatched up a conspiracy against the plaintiffs in order to

usurp the said land. The deceased plaintiff No.1 was

examined as PW.1 and he has reiterated the averments

made in the plaint in his evidence. In support of his case,

the plaintiffs got produced record of rights and tax paid

receipts to establish ownership over the suit schedule

properties. On the contrary, the defendant Nos.1 to 3 have

filed written statement denying the averments made in the

plaint and also denied ownership of the plaintiffs over the

suit schedule property. It was further contended that

defendant Nos.1 to 3 were owners of the suit schedule

property and defendant Nos.1 to 3 have executed

registered sale deed in favour of defendant Nos.4 and 5

and defendant Nos.4 and 5 are in possession of the suit

property as owners of the suit property. In order to

substantiate the claim of the plaintiffs, admittedly,

plaintiffs have not produced any records to show that

grandmother of the plaintiffs was owner of suit schedule

property and after her demise, the plaintiffs have inherited

the suit schedule property. The revenue records does not

confer any right, title or interest in favour of the person

and it is only recorded for the fiscal purpose i.e., payment

of land revenue. In the absence of title deed, the trial

Court has committed an error in granting relief of

declaration merely on the basis of revenue records.

14. Right from the year 1997, law is very clear. In

the case of Balwant Singh & Another vs. Daulat Singh

(Dead) By L.Rs. & Others reported in (1997)7 SCC

137, the Hon'ble Apex Court had an occasion to consider

the effect of mutation and also observed and held that

mutation of the properties in the revenue records will not

create or extinguish title to the property nor has any

presumptive value on the title. Such entries are relevant

only for the purpose of collecting the land revenue. The

similar view has been expressed in the series of decisions.

Thereafter, in the case of Suraj Bhan and Others vs.

Financial Commissioner and Others reported in

(2007) 6 SCC 186, it is observed and held by the Hon'ble

Apex Court that an entry in the revenue records does not

confer a title on the person whose name appears in the

record of rights. Entries in the record of rights or

Jamabandi have only 'fiscal purpose' i.e., payment of land

revenue and no ownership is conferred on the basis of

such entries. It is further observed that so far as title of

the property is concerned, it may be decided by the

competent civil Court.

15. Similar view has been expressed by the

Hon'ble Apex Court in the recent decision in Jeetendra

Singh vs. State of Madhya Pradesh decided on

06.09.2021 reported in 2021 SCC Online 802.

16. In view of the above settled proposition of law

laid down by the Hon'ble Apex Court that merely on the

basis of revenue entries or mutation, the title does not

create or extinguish. The said fact has not been properly

considered by the Courts below. Both the Courts below

have committed an error in not considering the fact that in

the absence of title deed, suit for declaration of title, ought

to have dismissed on the contrary, the Trial Court decreed

the suit of the plaintiffs and same is confirmed by the

appellate Court. In view of the above discussion, the

substantial questions of law Nos.1 and 2 are answered in

favour of the defendants.

17. In view of the above discussion, the appeal is

allowed. The impugned judgment and decree passed by

the trial Court and the appellate Court are set aside.

Consequently, the suit of the plaintiffs is dismissed.

Sd/-

JUDGE

VNR