Karnataka High Court
Kenchappa S/O.Doddegowda vs Sri.Manjunath on 18 December, 2023
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RSA No. 111 of 2012
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 18TH DAY OF DECEMBER, 2023
BEFORE
THE HON'BLE MR JUSTICE ASHOK S.KINAGI
REGULAR SECOND APPEAL NO. 111 OF 2012 (DEC)
BETWEEN:
1. KENCHAPPA
S/O.DODDEGOWDA
SINCE DEAD BY HIS LR'S
1A. SMT YASHODA
W/O.SHIVALINGA
D/O.KENCHAPPA
R/O.CHALUVANAHALLY POST
ARASIKERE TALUK
HASSAN DISTRICT - 573 103
1B. SMT SHIVAMMA
W/O. MALLESHAPPA
D/O. KENCHAPPA
Digitally R/O. NEERAGUNDA,
signed by R BASAVAGATTA POST
DEEPA ARASIKERE TALUK,
Location: High HASSAN DISTRICT - 573 103
Court of
Karnataka
1C. KUMARA
S/O.LATE KENCHAPPA
R/O.HOYSALA EXTENSION,
HALEBEED BELUR TALUK,
HASSAN DISTRICT - 573 115
1D. PUTTALAKSHMAMMA
W/O.OMKARAPPA
D/O.KENCHAPPA
R/O.KARIYAMMA STREET,
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RSA No. 111 of 2012
HALEBEED BELUR TALUK,
HASSAN DISTRICT - 573 115
....APPELLANTS
(BY SRI. NITHISH K.N., ADVOCATE FOR
SRI. K V NARASIMHAN, ADVOCATE)
AND:
SRI. MANJUNATH
S/O.LATE GOVINDARAO
AGED ABOUT 50 YEARS
MAIN ROAD, HALEBEEDU,
BELUR TALUK, HASSAN DISTRICT
...RESPONDENT
(BY SRI. A V GANGADHARAPPA, (AVG ASSOCIATES)
THIS RSA IS FILED UNDER SEC.100 OF CPC., AGAINST
THE JUDGMENT AND DECREE DATED 18.10.2011 PASSED IN
R.A.NO.91/2008 ON THE FILE OF THE SENIOR CIVIL JUDGE,
BELUR, ALLOWING THE APPEAL AND SETTING ASIDE THE
JUDGMENT AND DECREE DATED 28.8.2007 PASSED IN
O.S.NO.179/2002 ON THE FILE OF THE CIVIL JUDGE (JR.DN) &
JMFC., BELUR.
THIS APPEAL, COMING ON FOR FINAL HEARING, THIS
DAY, THE COURT DELIVERED THE FOLLOWING:
JUDGMENT
This appeal is filed by the appellants challenging the
judgment and decree dated 18.10.2011 in R.A.No.91/2008
passed by the Senior Civil Judge, Belur.
2. For the sake of convenience, parties are referred
to as per their ranking before the trial Court. Appellants
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are the legal representatives of deceased defendant and
respondent is the plaintiff.
3. The brief facts leading rise to filing of this appeal
are as under:
Plaintiff filed a suit for declaration of title, possession
of the suit schedule property and arrears of rent. It is the
case of the plaintiff that the suit schedule property bearing
khata No.185 measuring east to west; 47 feet and north
to south; 26 feet, which was constructed by his father
Govindarao in the year 1962 and same was inherited by
the plaintiff after the death of his father. It is contended
that since 1986, all documents of title are in his name and
he is paying taxes. The defendant was well acquainted
with the parents of the plaintiff and on gaining
sympathetic grounds sought for shelter from the parents
of plaintiff for temporary living as he had no roof of his
own and with assurance that he would vacate the
premises after constructing his own house within a year or
by 1975-76. The lease was for oral one and without any
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advance. Initially, the monthly rent was Rs.10/- which
was increased to Rs.20/- and to Rs.50/- and to Rs.100/-
finally to Rs.200/-. It is further stated that the defendant
had stopped the payment of rent from 1997-98 and he is a
chronic defaulter in due of Rs.7,200/- from 01.08.1999
and he is also liable to pay the interest at the rate of 18%
p.m. Hence, on these grounds prays to decree the suit.
4. The defendant filed the written statement
denying the averments made in the plaint. It is denied
that the plaintiff is not the owner of the suit schedule
property. It is contended that the suit schedule property
is the gramatana property which belongs to the defendant
and the defendant and his wife, after obtaining the
permission from the competent authority constructed the
building about 45 years back and they are residing in the
said suit house. It is further stated that the boundaries
given by the plaintiff is incorrect. The defendant belongs
to shepherd community, who was disliked by the plaintiff
and on that account the plaintiff had filed a false suit with
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an intention to harass the defendant and to take
possession of the suit property. The suit filed by the
plaintiff is barred by limitation, and bad for non-joinder of
necessary parties. Hence, prayed to dismiss the suit.
5. The Trial Court, on the basis of the above said
pleadings, framed the following issues:
1. Whether the plaintiff proves that he is the
absolute owner of the suit schedule property?
2. It so, whether the plaintiff further proves that
the he is entitled for due arrears of rent of
Rs.7,200/- from 01.08.1999 with interest at
18% p.a. with cost?
3. If so, whether the plaintiff is entitled for the
relief of declaration as prayed for?
4. Whether the defendant proves that he is in
peaceful possession and enjoyment of suit
schedule property?
5. If so, whether the defendant proves that the
plaintiff themselves are interfering over their
such possession and enjoyment of suit
schedule property?
6. What order or decree ?
6. The plaintiff in order to prove his case,
examined himself as PW.1 and got marked 25 documents
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as Exs.P1 to P25 and also examined 3 witnesses as PWs.2
to 4. In rebuttal, the defendant examined himself as
DW.1 and got marked 7 documents marked as Exs.D1 to
D7 and also examined DW.2. The trial Court on
assessment of the oral and documentary evidence,
answered issue Nos.1 to 3 in the negative and issue No.4
and 5 does not arise for consideration and issue No.6 as
per the final order. The trial Court dismissed the suit of
the plaintiff with costs. The plaintiff aggrieved by the
judgment and decree passed by the trial Court, preferred
the appeal in R.A.No.91/2008.
7. The First Appellate Court, after hearing the
parties, has framed the following points for consideration:
1. Whether the defendant was a tenant under
the parent of plaintiff or plaintiff in respect of
suit schedule property?
2. Whether the plaintiff possesses right, title ,
ownership and interest in the respect of suit
house property?
3. Whether the defendant is entitled to retain
the possession of suit schedule property
from plaintiff?
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4. Whether the plaintiff is entitled for the relief
sought?
5. Whether the trial Court has properly
appreciated pleas and materials of parties
with proper perspective?
6. Whether the impugned judgment and decree
of the trial Court calls for interference?
7. Whether persons described in I.A.No.2
deserve to come on record as a party to lis?
8. What order ?
8. The first appellate court on re-assessment of
oral and documentary evidence answered point Nos.1, 2, 4
and 6 in the affirmative, point Nos.3, 5 and 7 in the
negative, and point No.8 as per the final order. The appeal
was allowed. The judgment and decree passed by the trial
Court was set aside. Hence, suit of the plaintiff was
decreed. It is ordered and decreed that the plaintiff along
with other heirs of Govindarao is the owner having right,
title and interest over the suit schedule property. Legal
representatives of the defendant shall hand over the
vacant possession of the suit schedule house property in
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favour of plaintiff within 2 months from today along with
arrear of Rs.7,200/- with interest at the rate of 6% p.a.
9. The legal representatives of the defendant
aggrieved by the judgment and decree passed by the first
appellate court in R.A.No.91/2008 has filed this second
appeal.
10. This court admitted the appeal on the following
substantial question of law :
'Whether the lower appellate Court had
erred in law in decreeing the suit filed for
declaration of title and for possession in the
absence of document of title or any document
evidencing title?'
11. Heard the learned counsel for the defendant
and learned counsel for the plaintiff.
12. Learned counsel for the LR's of deceased
defendant submits that plaintiff had filed the suit for
declaration of title and possession. The plaintiff had not
produced any title deeds in support of his pleadings. He
further submits that the first appellate court has recorded
a finding that the plaintiff has not produced any title
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documents, but still the first appellate court declares that
the plaintiff is the absolute owner of the suit schedule
property. He submits that the plaintiff has produced the
panchayath records and the panchayat records are not
title deeds. Hence he submits that first appellate court
has committed an error in declaring the plaintiff and other
legal heirs of Govindarao as absolute owners of the suit
schedule property. He submits that the judgment and
decree passed by the first appellate court is contrary to
the law laid down by the Hon'ble Apex Court. The first
appellate court could not have decreed the suit. He
submits that judgment and decree passed by the first
appellate court is arbitrary, perverse and same is liable to
be set aside. Hence, on these grounds he prays to allow
the appeal.
13. Per contra, learned counsel for the plaintiff
submits that the present defendant had filed a suit in
O.S.No.112/2002 along with his wife against the present
plaintiff for the relief of permanent injunction. The said
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suit was decreed and he submits that when permanent
injunction was granted against the present plaintiff, and
in the said suit the court had recorded a finding that the
plaintiff to take possession of the suit schedule property
from the defendant herein under due process of law and to
establish his ownership over the suit schedule property.
He submits that the plaintiff has produced panchayat
records which discloses that the plaintiff is the absolute
owner of the suit schedule property and further as per the
findings recorded the plaintiff has filed a suit for
declaration of title. The first appellate court considered
the panchayat records produced by the plaintiff and has
rightly decreed the suit declaring that the plaintiff is the
absolute owner of the suit schedule property. He submits
that judgment and decree passed by the first appellate
court is just and proper and does not call for any
interference. Hence, on these grounds he prays to dismiss
the appeal.
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14. Perused the records and considered the
submissions of learned counsel for the parties.
15. Substantial question of law: The plaintiff in
order to substantiate his case examined himself as PW.1
and he has reiterated the plaint averments in the
examination-in-chief and produced documents marked as
Ex.P.1 is the mutation register extract; Ex.P2 is the
mutation register extract and from the perusal of Ex.P.2, it
discloses that it is a part of Ex.P.1; Ex.P.3 is the mutation
register extract in respect of house No.190 wherein the
suit schedule property khata number is 185 and Ex.P3
does not pertain to suit schedule house; Ex.P4 is the
assessment register extract which stands in the name of
Govindarao in respect of property No.166; Ex.P5 to 8 are
the demand register extracts in respect of property
bearing No.190 which stands in the name of plaintiff;
Ex.P9 is an endorsement issued by Gram panchayath
stating that the property bearing khata No.185 is owned
by Govindarao; Ex.P.10 to Ex.P.22 are the tax paid
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receipts; Ex.P.23 is the legal notice got issued by the
plaintiff to the defendant on 30.08.2002 calling upon the
defendant to pay the arrears of rent and to vacate the suit
schedule property; Ex.P.24 is the postal receipt and
Ex.P.25 is the reply to Ex.P23, wherein the defendant
denied the ownership of plaintiff over the suit schedule
property and further denied that there exists no
relationship as a landlord and tenant between the plaintiff
and defendant. Further, in the course of cross-
examination it is suggested that there is no relationship as
a landlord and tenant between the plaintiff and defendant
and also the plaintiff is not the absolute owner of the suit
schedule property, the said suggestion was denied by
PW.1. Further, the plaintiff in order to prove his ownership
over the suit schedule property examined 3 witnesses as
PW.2 to PW.4 who have deposed that the plaintiff is the
owner of the suit schedule property and defendant is in
possession of the suit schedule property as a tenant.
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16. In rebuttal, the defendant examined himself as
DW.1 and he has reiterated the written statement
averments in the examination-in-chief and produced
documents Ex.D1 to D3 are the residential certificates;
Ex.D4 is the acknowledgement for having issued a reply to
Ex.D3; Ex.D5 is the Genealogical tree; Ex.D6 is the copy
of legal notice got issued by plaintiff to the defendant and
Ex.D7 is the copy of reply notice got issued by the
defendant to the plaintiff. Further, the defendant also
examined one witness by name Malleshappa as DW.2. He
has deposed in the same line of DW.1 and nothing has
been elicited from the mouth of these witnesses. From
the perusal of the oral and documentary evidence, the
plaintiff is claiming to be the owner of suit schedule
property on the basis of panchayath records. Ex.P.3
pertains to house No.190, Ex.P.4 pertains to house
No.166, Ex.P5 and 6 pertains to property No.190, Ex.P7
and 8 pertains to house No.185 i.e., suit property. From
the perusal of Ex.P3, 4, 5 and 6 does not pertain to the
suit schedule property. The entire case of the plaintiff is
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based on the panchayat records preponderance of
probabilities. The plaintiff has not produced any document
of title to establish his ownership over the suit schedule
property. The panchayath records like khata extract, tax
paid receipt, mutation order are not the title deeds. In a
dispute with respect to determination of title, the plaintiff
has to produce title deeds and merely pointing out the
lacuna in the defendant's title would not suffice. The
plaintiff having instituted the suit for declaration of title,
the burden of proof rested on the shoulders of the plaintiff
to reasonably establish the probability of the better title,
which the plaintiff in the present case has manifestly failed
to do. The Hon'ble Apex Court in the case of Union of
India and others Vs. Vasavi Co-operative housing
society limited and others reported in 2014 2 SCC 269,
held as under:
"15. It is trite law that, in a suit for declaration of
title the burden always lies on the plaintiff to make out
and establish a clear case for granting such a declaration
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and the weakness, if any, of the case set up by the
defendants would not be a ground to grant the relief to the
plaintiff. The said decision was affirmed and further
elaborated upon by the Hon'ble Apex Court in the case of
Jagadish Prasad patel (dead) through Legal
representatives and others Vs. Shivnath and others
reported in (2019) 6 SCC 82, held as under:
44. In the suit for declaration of title and
possession, the respondent-plaintiff could
succeed only on the strength of their own title
and not on weakness of the case of the
appellant-defendants. The burden is on the
respondent- plaintiffs to establish their title to
the suit properties to show that they are
entitled for a decree for declaration. The
respondent-plaintiffs have neither produced the
title document i.e., patta-lease which the
respondent-plaintiffs are relying upon nor
proved their right by adducing any other
evidence. As noted above, the revenue entries
relied on by them are also held to be not
genuine. In any event, revenue entries for few
khataunis are not proof of title; but are mere
statements for revenue purpose. They cannot
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confer any right or title on the party relying on
them for proving their title.
17. The plaintiff is expected to prove his title to a
high degree of probability and not beyond reasonable
doubt. The plaintiff having led in the evidence only the
panchayath records which are essentially fiscal in nature. I
have no hesitation in holding that in the present case the
plaintiff has been unable to assert his case to a high
degree of probability. It is therefore, not enough that the
plaintiff led in evidence the panchayath records in an
attempt to establish his title.
18. It is settled proposition of law that mutation
entry, khata extract, tax paid receipts does not confer any
right, title or interest in favour of the person. Further
mutation of the properties in the panchayath record
neither creates or extinguishes the title to the property nor
has any presumptive value on title. Such entries are
relevant only for the purpose of collecting land revenue.
The Hon'ble Apex Court in the case of Suraj bhan Vs.
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Financial Commissioner reported in (2007) 6 SCC 186
held that an entry in the revenue records does not confer
title on a person whose name appears in record of rights.
Entries in the revenue records on jamabandi have only
'fiscal purpose', that is payment of land revenue and no
ownership is conferred on the basis of such entries. It is
further observed that so far as the title of the property is
concerned it can be decided by competent civil Court. In
view of the above settled proposition of the law laid down
by the Hon'ble Apex Court and in the light of discussion
made above, the First Appellate Court erred in decreeing
the suit by placing on a higher probative pedestal the
panchayath records. In my considered opinion the First
Appellate Court has committed an error in decreeing the
suit only placing reliance on panchayth records. The
Impugned judgment and decree is arbitrary, perverse and
same is liable to be set aside. In view of the above
discussion, I answer substantial question in the
affirmative.
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19. Accordingly, I proceed to pass the following:
ORDER
The appeal is allowed.
The judgment and decree dated
18.10.2011 passed by the appellate court in
R.A.No. 91/2008 is set aside.
The judgment and decree passed by the
trial court is restored.
No order as to the costs.
In view of disposal of the appeal, pending IAs, if any,
do not survive for consideration and are accordingly
disposed of.
SD/-
JUDGE
SKS
