Karnataka High Court

Shakuntala W/O Basavraj Hosakeri vs Andaneppa S/O Shivappa Hosakeri on 9 June, 2022

Bench: K.S.Mudagal, M.G.S. Kamal

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                                      RFA No. 100178 of 2021


            IN THE HIGH COURT OF KARNATAKA,
                     DHARWAD BENCH

           DATED THIS THE 09TH DAY OF JUNE, 2022

                         PRESENT

         THE HON'BLE MRS JUSTICE K.S.MUDAGAL

                           AND

           THE HON'BLE MR JUSTICE M.G.S. KAMAL

        REGULAR FIRST APPEAL NO. 100178 OF 2021

BETWEEN:

1.   SHAKUNTALA W/O BASAVRAJ HOSAKERI
     AGE. 48, OCC. AGRICULTURE AND
     HOUSE HOLD WORK,
     R/O. BEERANUR, TQ. BADAMI,
     DIST. BAGALKOT PIN- 587201

2.   JYOTI D/O BASAVRAJ HOSAKERI
     AGE. 26, OCC. STUDENT,
     R/O. BEERANUR, TQ. BADAMI,
     DIST. BAGALKOT PIN- 587201

3.   MANJULA D/O BASAVRAJ HOSAKERI,
     AGE. 23, OCC. STUDENT,,
     R/O. BEERANUR, TQ. BADAMI,
     DIST. BAGALKOT PIN- 587201

                                                ...APPELLANTS
(BY SRI.M.N.BIKKANNAVAR, ADV. FOR
SRI.ANAND R.KOLLI, ADV.)

AND:

1.   ANDANEPPA S/O SHIVAPPA HOSAKERI,
     AGE. 59, OCC. AGRICULTURE
     R/O. BEERANUR, TQ. BADAMI,
     DIST. BAGALKOT PIN- 587201
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                                          RFA No. 100178 of 2021




2.   SHASHIKALA W/O.IRAPPA @ VEERANNA HOSAKERI,
     AGE. 56, OCC. HOUSE HOLD WORK,
     R/O. BEERANUR, TQ. BADAMI,
     DIST. BAGALKOT PIN- 587201

3.   SUSHMITA D/O IRAPPA @ VEERANNA HOSAKERI
     AGE. 15, OCC. STUDENT,
     R/O. BEERANUR, TQ. BADAMI,
     DIST. BAGALKOT PIN- 587201

4.   BASAVRAJ S/O IRAPPA @ VEERANNA HOSAKERI
     AGE. 06 OCC. NIL,
     R/O. BEERANUR, TQ. BADAMI,
     DIST. BAGALKOT PIN- 587201

     RESPONDENT NOS.3 AND 4 ARE MINORS
     REP. BY RESPONDENT NO.2
     NATURAL GUARDIAN I.E., MOTHER


                                                  ...RESPONDENTS

(BY SRI. SHIVARAJ S. BALLOLI, ADV. FOR C/R1)


      THIS RFA IS FILED UNDER SECTION 96 OF CPC 1908,

AGAINST THE JUDGMENT AND DECREE DATED 05.04.2021 PASSED

IN O.S. NO.82/2017 ON THE FILE OF THE SENIOR CIVIL JUDGE AND

JMFC, BADAMI, DISMISSING    THE SUIT FILED FOR DECLARATION

AND PERMANENT INJUNCTION.



      THIS   RFA   COMING   ON      FOR   ADMISSION   THIS   DAY,

K.S.MUDAGAL J., DELIVERED THE FOLLOWING:
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                                            RFA No. 100178 of 2021


                          JUDGMENT

Heard.

2. Aggrieved by the dismissal of their suit for

declaration of title, permanent injunction and declaration with

regard to mutation entries, the plaintiffs in O.S. No.82/2017 on

the file of the Senior Civil Judge and JMFC, Badami, have

preferred this appeal.

3. The appellants are the wife and children of one

Basavaraj Hosakeri. Respondent No.1 and one Irappa @

Veeranna were the other two brothers of Basavaraj.

Respondent Nos.2 to 4 are the wife and children of Irappa. One

Shivappa and Sangavva were the parents of Basavaraj,

Andaneppa and Irappa. The father of Shivappa was one

Basappa Hosakeri. Basappa died on 31.01.1968. Basavaraj died

on 13.11.1998 and Irappa died on 09.05.2016.

4. The appellants filed O.S. No.82/2017 against the

respondents (defendant Nos.1 to 4) contending that propositus

- Basappa had executed registered Will dated 29.04.1966 in

favour of Basavaraj and by virtue of such Will, Basavaraj had

become the absolute owner of the property. They contended

RFA No. 100178 of 2021

that since Basavaraj was only 2½ years old at the time of

execution of the Will, his father Shivappa was acting on his

behalf. They claimed that on the death of Basappa, Shivappa

got his name entered in the revenue records and later the

defendants got their names entered into the revenue records.

They further claimed that they being the heirs of Basavaraj are

the absolute owners of the property and the revenue entries in

favour of the defendants are null and void. They sought

declaration of the title, nullity of the revenue entries and for

permanent injunction.

5. The defendants disputed the execution of the Will

dated 29.04.1966, the ownership of Basavaraj and the

plaintiffs. They also claimed that since the property was the

ancestral property, Basappa had no right to execute the alleged

Will in favour of Basavaraj.

6. The Trial Court on the basis of the pleadings of the

parties, framed the following issues:

"1. Whether the plaintiffs prove that, they are the absolute owners of the suit properties by virtue of the will dated 29.04.1966?

RFA No. 100178 of 2021

2. Whether the plaintiffs prove that the propositus Basappa executed the will in favour of Basavaraj Shivappa Hosakeri on 29.04.1966 bequeathing the suit properties in favour of said Basavaraj?

3. Whether the plaintiffs prove that they are in lawful possession of the suit properties?

           4.    Whether      the    plaintiffs   prove   that
                defendants      interfered        with    their
                possession over the suit properties?

5. Whether the plaintiffs are entitled for reliefs of declaration and permanent injunction as prayed for?

6. Whether plaintiffs are entitled for the reliefs prayed for?

7. What order or decree?"

7. The parties adduced their evidence. The Trial Court

on hearing the parties, by the impugned judgment and decree

dismissed the suit on the ground that the plaintiffs did not

produce the original Will and examine the attesting witness.

Therefore, the same was not proved. The Trial Court further

held that in Ex.D2, the plaint on their suit O.S. No.316/2011

RFA No. 100178 of 2021

the plaintiffs have admitted that the suit property was the

ancestral property and the same was subdivided as Sy.

Nos.40/1, 40/2 and 40/3 and Sy. No.40/3 was allotted to their

share. Having regard to such admission, the Trial Court held

that there is no merit in the suit.

8. As rightly pointed out by the Trial Court, the Will

has to be proved by producing the original document unless the

loss or destruction of the same is proved to the satisfaction of

the Court. The plaintiffs did not set up the loss of destruction of

the Will nor adduced any evidence, to prove any such loss or

destruction of the Will. They did not examine the attesting

witness or anybody who were acquainted with the handwriting

or signature of the attesters of the Will.

9. To crown that the plaintiffs themselves filed O.S.

No.316/2011. The plaint in O.S. No.316/2011 was marked as

Ex.D2 by way of confrontation. In para 3 of the said plaint, the

plaintiffs unequivocally admitted that the suit schedule property

was the ancestral property and there was a partition between

Basappa and his brothers and in that partition, Sy. No.40/3

measuring 6 acres 35 guntas had fallen to the share of the

RFA No. 100178 of 2021

plaintiffs. That itself substantiated the defence of the

defendants. Further, Exs.D1 to D6 were admitted in evidence

by confrontation to PW1 - the plaintiff which she admitted.

Ex.D3 - the mutation entry dated 16.08.1984 shows that on

the application of Basavaraj, defendant No.1 and Irappa, the

names of the said parties were entered in the revenue records

on the basis of oral partition. During the life time of Basavaraj

from 1984 till his death, he did not challenge those entries.

10. Further the plaintiffs in addition to seeking

declaration of the title, sought declaration that M.E. Nos.702,

883 in favour of defendants are null and void and not binding

on them. Section 135 of the Karnataka Land Revenue Act, 1964

bars the jurisdiction of the civil Court to seek a decree against

the State Government or any officer of the State Government

to have an entry made, omitted or amended in the record of

rights.

11. The proviso to Section 135 of the Karnataka Land

Revenue Act, 1964 enables a person in possession of the

property, if any third person based on such revenue entries

denies his title to file a suit for declaration of his title. It further

RFA No. 100178 of 2021

states that then the entry in the record or register shall be

amended in accordance with any such declaration. To make the

position clear, Section 135 of the Karnataka Land Revenue Act,

1964 is reproduced below:

"135. Bar of suits.-No suit shall lie against the State Government or any officer of the State Government in respect of a claim to have an entry made in any record or register that is maintained under this Chapter or to have any such entry omitted or amended:

Provided that if any person is aggrieved as to any right of which he is in possession, by an entry made in any record or register maintained under this Chapter, he may institute a suit against any person denying or interested to deny his title to such right, for a declaration of his right under [Chapter VI of the Specific Relief Act, 1877]; and the entry in the record or register shall be amended in accordance with any such declaration."

12. Chapter XI of the Karnataka Land Revenue Act,

1964 which deals with the record of rights, provides for the

mechanism to make entries or challenge the same by

conferring appellate/revisional jurisdiction on the revenue

authorities under Section 136 of the Act. Therefore, if any entry

RFA No. 100178 of 2021

is wrong according to the plaintiff, they have to prefer appeal

or revision. As per the proviso to Section 135 of the Act, only

option is to seek the declaration of their title and on getting

decree for declaration of title, approach the revenue authorities

for change of the entries in accordance with such decree.

13. The plaintiffs filing suit for declaration of revenue