Karnataka High Court
Sumitrabai W/O Saibanna Jakanoor vs Arjun S/O Ramanna Sidle on 20 December, 2023
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RSA No. 7018 of 2012
IN THE HIGH COURT OF KARNATAKA,
KALABURAGI BENCH
DATED THIS THE 20TH DAY OF DECEMBER, 2023
BEFORE
THE HON'BLE MRS JUSTICE M G UMA
REGULAR SECOND APPEAL NO. 7018 OF 2012 (DEC/INJ)
BETWEEN:
1. SUMITRABAI W/O SAIBANNA JAKANOOR
AGE 60 YEARS, OCC: HOUSEHOLD
R/O. HALLIKHED (B), TQ. HUMNABAD
DIST. BIDAR 585326
...APPELLANT
(BY SRI. SACHIN M MAHAJAN, ADVOCATE)
AND:
1. ARJUN S/O RAMANNA SIDLE
AGE 56 YEARS, OCC. AGRICULTURE
R/O HALLIKHED (B) TQ. HUMNABAD
Digitally signed
DIST. BIDAR 585 326.
by PAVITHRA N
Location: high 2. ASHOK BASAYYA HALA
court of
karnataka AGE 37 YEARS, OCC: AGRICULTURE
R/O HALLIKHED (B)TQ. HUMNABAD DIST.
BIDAR 585 326
3. THE SECRETARY GRAM PANCHAYAT,
R/O HALLIKHED (B)TQ. HUMNABAD DIST.
BIDAR 585 326.
...RESPONDENTS
(BY SRI. SHIVASHARANA REDDY, ADVOCATE FOR R1
R2 AND R3 ARE SERVED)
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RSA No. 7018 of 2012
THIS RSA IS FILED U/S. 100 OF CPC, TO ALLOW THIS
REGULAR SECOND APPEAL AND TO SET-ASIDE THE JUDGMENT
AND DECREE PASSED BY THE HON'BLE ADDL.CIVIL JUDGE
(JR.DN.) AT HUMNABAD ON 26.03.2008 IN OS.NO.4/2007 AND
THE JUDGMENT AND DECREE PASSED BY THE SENIOR CIVIL
JUDGE AT HAMNABAD DATED 22.11.2011 IN RA.NO.143/2011
AND DISMISS THE SUIT OF THE PLAINTIFF/RESPONDENT NO.1
WITH EXEMPLARY COST, IN THE INTEREST OF JUSTICE AND
EQUITY.
THIS APPEAL, COMING ON FOR FINAL HEARING, THIS
DAY, THE COURT DELIVERED THE FOLLOWING:
JUDGMENT
Defendant No.1 in OS.No.4/2007 on the file of learned
Additional Civil Judge (Jr.Dn.), Humnabad is impugning the
judgment and decree dated 26.03.2008 decreeing the suit of
the plaintiff in part and declaring that the plaintiff is in
possession and enjoyment of the house site i.e., the suit
property and restraining defendant No.1 from causing
interference with the possession and enjoyment of the plaintiff,
which was confirmed in RA.No.143/2011 on the file of learned
Senior Civil Judge Humnabad, vide judgment dated
22.11.2011.
2. For the sake of convenience, parties are referred to
as per their status and rank before the Trial Court.
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3. Brief facts of the case are that the plaintiff filed OS
No.4/2007 against defendant Nos.1 to 3 seeking relief of
declaration that the plaintiff is in exclusive owner in possession
of the house site bearing No.11-111/1 (old) No.11-112/1 (new)
measuring 40X30 feet, situated at Bhimnagar locality of
Hallikhed-B with boundaries therein (hereinafter referred to as
'suit property'), to declare that the documents like mutation
proceedings, property demand register, deleting the name of
Mapanna Jaknoor of Hallikhed-B village, construction
permission issued in the name of defendant No.1, panchanama
dated 17.03.2006 are all fabricated documents which are not
binding on the plaintiff and for grant of perpetual injunction to
restrain defendant No.1 from causing any interference with the
peaceful possession of the suit property.
4. It is contended by the plaintiff that during 1960-61,
several house sites were formed in Hallikhed-B village for
allotting to the persons of his community. One such plot was
allotted in favour of father of plaintiff by name Ramanna Sidle,
who had constructed a temporary shed and started residing in
the same. The suit property which is described above was also
formed for such purpose was lying un-occupied. Therefore, in
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the year 1973-74, father of the plaintiff requested the
Tahasildar of Humnabad to grant suit property in favour of
plaintiff. Accordingly, the same was allotted in the name of
plaintiff. Since from 1973-74, the plaintiff is in actual and
physical possession and enjoyment of property exclusively,
openly, peaceably and to the knowledge of every citizen of
village Hallikhed-B.
5. It is contended that in the year 1975, the plaintiff
with an intention to construct house in the suit property, got
necessary construction permission. However, could not put up
the construction. During 1989 defendant No.1 started to
interfere with the peaceful possession and enjoyment of the
plaintiff and forged revenue records. Defendant No.1 filed
OS.No.80/1989 before the Trial Court against the plaintiff
seeking permanent injunction. The plaintiff herein contested
the said suit and the suit was came to be dismissed vide
judgment and decree dated 13.07.1998. After dismissal of the
suit, defendant No.1 got concocted the documents as she
became the member of the Gram Panchayath and on the basis
of concocted documents, started to interfere with the peaceful
possession and enjoyment of the plaintiff. Therefore, plaintiff
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filed the suit seeking declaration of his title and for permanent
injunction as stated above.
6. Defendant No.1 appeared before the trial Court and
filed his written statement denying the contentions taken by
the plaintiff. It is denied that plaintiff was granted suit property
by the village panchayath at any point of time. It is also denied
that plaintiff has got construction permission or that defendant
No.1 interfered with his possession. Defendant No.1 contended
that it is defendant No.1 who is the exclusive owner in
possession of the suit property as described in the written
statement. It was earlier owned and possessed by Mapanna
Jaknoor of Hallikhed-B village. The father of defendant No.1
by name Lalappa and Mapanna Jaknoor were brothers. After
the death of Mapanna Jaknoor, the property devolved on
defendant No.1 as Mapanna had no other legal representatives.
Since then defendant No.1 is in peaceful possession and
enjoyment of the suit property. Plaintiff is not having any right
title or interest over the same. It is defendant No.1 who is
paying the revenue. No grounds were made out to decree the
suit. Hence, defendant No.1 prayed to dismiss the suit.
Defendant Nos.2 and 3 have not contested the suit.
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7. On the basis of these pleadings, the Trial Court
framed following issues for consideration:
1) Whether the plaintiff proves that he is the
owner in possession of suit open plot
No.11-111/1 (old) 11-112/1 (new) ad-
measuring from east to west 40 ft and
north to south 30 ft situated at Bhimnagar
locality of Hallikhed-B within the boundaries
mentioned in the plaint?
2) Whether plaintiff further proves that he is
entitled for to delete the entries entered in
property Gram Panchayat No.12-104 is not
binding upon the plaintiff?
3) Whether plaintiff further proves that the
defendant is causing illegal interference
into possession of plot No.11 112-1 new of
the plaintiff?
4) Whether the defendant proves that she is
the owner in possession of G.P.No.12-104
situated in blok No.12 of New Bhimnagar
locality of Hallikhed-B within the boundaries
mentioned in the W.S.?
5) Whether the plaintiff proves that he is
entitled to relief of perpetual injunction as
prayed for?
6) What order or decree?
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8. Plaintiff examined PWs.1 and 2 and got marked
Exs.P.1 to 17 in support of his contentions. Defendant Nos.1
examined DWs.1 to 3 and got marked Exs.D.1 to 8 in support
of his defence. The Trial Court after taking into consideration all
the materials on record, answered issue No.1 partly in
affirmative, Issue Nos.3 and 5 in the Affirmative and Issue
Nos.2 and 4 in the Negative. Accordingly, suit of the plaintiff is
decreed in part declaring that plaintiff is in possession of the
suit property and granting perpetual injunction against the
defendant No.1 from interfering with the possession and
enjoyment of the plaintiff.
9. Being aggrieved by the same, defendant No.1 has
preferred RA.No.143/2011. The First Appellate Court on re-
appreciation of materials on record dismissed the appeal and
confirmed the impugned judgment and decree passed by the
Trial Court. Being aggrieved by the same, defendant No.1 is
before this Court.
10. Heard Sri. Sachin Mahajan, learned counsel for the
appellant and Sri. Shivasharan Reddy, learned counsel for
respondent No.1.
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11. Learned counsel for the appellant/defendant No.1
contended that the plaintiff has filed suit for declaration of his
title and for permanent injunction. The Trial Court partly
decreed the suit granting declaration that the plaintiff is in
possession of the same. Apparently no declaration is given
regarding title of the plaintiff. Learned counsel further
submitted that the plaintiff has not produced any document to
prove his title. Even though it is contended that the suit
property was granted in his favour by the Village panchayath
no grant certificate is produced. Few tax paid receipts and
building permission are relied on by the plaintiff to claim title
over the property. Even though the Trial Court refused to grant
declaration of his title, the plaintiff has not challenged the said
judgment and decree.
12. Learned counsel further submitted that merely
because suit OS.No.80/1989 filed by the present defendant
No.1 was came to be dismissed, it will not automatically lead to
decreeing of the present suit. The Trial Court and the First
Appellate Court committed an error in decreeing the suit based
on the weakness of defendant No.1. Therefo
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13. Per contra, leaned counsel for respondent
No.1/plaintiff opposing the appeal submitted that admittedly
defendant No.1 had filed suit OS.No.80/1989 against the
present plaintiff for declaration and permanent injunction. The
said suit came to be dismissed as per Ex.P.7. The discussion
made by the Trial Court for dismissing OS.No.80/1989 makes it
clear that defendant No.1 is not having any manner of right,
title or interest over the suit property.
14. Learned counsel further submitted that defendant
No.1 being the member of Village Panchayath concocted
several documents to claim possession over that property.
Therefore, the said suit OS.No.80/1989 was came to be
dismissed. The Trial Court in the present case also taken into
consideration concocted document of defendant No.1 and
decreed the suit of the plaintiff, there are no merits in the
appeal preferred by the appellant and therefore prays for
dismissal of the appeal with costs.
15. This Court vide order dated 12.01.2018 has framed
the following substantial question of law for consideration:
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1) Whether the courts below are justified in
decreeing the suit by granting the relief of
declaration in the absence of the very
document of title?
2) Whether the courts below have erred by not
drawing adverse interference against the
plaintiff who has not produced the alleged
document of allotment issued by the
Tahasilder?
3) Whether the dismissal of OS.No.80/1989
which was admittedly a suit for bare injunction
confers title upon the plaintiff?
4) Whether the suit of the plaintiff is
maintainable without issuing statutory notice
to the defendant No.3?
My answer to the above substantial question of law Nos.1,
3 and 4 in the negative and substantial question of law No.2 in
the Affirmative for the following:
REASONS
16. Plaintiff filed suit to declare that he is the owner in
possession of suit property and to declare that the documents
relied on by defendant No.1 are concocted, fabricated and
same are not binding on the plaintiff and also for perpetual
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injunction restraining defendant No.1 from interfering with the
peaceful possession and enjoyment of the suit property. The
Trial Court has declared that plaintiff is in possession of suit
property and granted perpetual injunction restraining defendant
No.1 from interfering with the possession and enjoyment of
the plaintiff. Apparently, the Trial Court answered Issue No.1
partly in the affirmative. It has categorically held that plaintiff
has not produced title deed i.e., grant order issued by
Tahasildar, Humnabad. The declaration with regard to
possession of plaintiff was granted based on revenue
documents on the ground that same are having presumptive
value.
17. It is pertinent to note that plaintiff has placed
reliance on Ex.P.1 the copy of the building licence dated
11.02.2006, which was issued in favour of defendant No.1.
Ex.P2 is the sketch appended to Ex.P.1. Ex.P.3 is the extract
from mutation register Gram Panchayath, Hallikhed-B,
according to which the property stands in the name of Mapanna
Jaknoor of Hallikhed-B village and it was transferred in the
name of defendant No.1 as legal representatives of original
owner-Mapanna Jaknoor. Ex.P.4 is the extract from Khatha
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register where the name of Mapanna Jaknoor was rounded of
and property was entered in the name of defendant No.1.
Ex.P.5 is the panchanama drawn by the village accountant
while holding spot inspection of the suit property on
17.03.2006. According to which, it was defendant No.1, who
was in possession and enjoyment of the property.
18. Ex.P.6 is the endorsement issued by CEO, Talluk
Panchayath, Humnabad regarding objection raised by the
plaintiff and stating that after holding spot inspection in the
presence of both the parties and local villagers, name of
defendant No.1 was mutated in the revenue records and also
stating that property was never mutated in the name of plaintiff
nor there was any application in that regard.
19. Exs.P.7 and 8 are the certified copies of the
judgment and decree in OS.No.80/1989 on the file of learned
Prl.Civil Judge (J.D) and JMFC, Humnabad dismissing the suit
filed by the defendant No.1 for perpetual injunction and later
sought for declaration against the plaintiff. It is held that
defendant No.1 has not proved her possession over the suit
property and nor she has proved the interfere by plaintiff
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herein and answered the issues in the Negative and dismissed
the suit. Ex.P.9 is the copy of the plaint in OS.No.80/1989.
20. Ex.P.10 is the Hakku Patra granted in the name of
Mapanna Jaknoor Harijana. This document does not bear any
seal or signature of any authorised officer to issue the grant
certificate or the Hakkupatra. As per this document, property
was granted in favour of Mapanna Jaknoor Harijana. He is not a
party to the proceedings. According to defendant No.1, he is
her uncle and after his death, the property devolved on her.
But according to the plaintiff, Mapanna Jaknoor is unrelated to
plaintiff or defendant No.1.
21. Exs.P.11 and 12 are receipts dated 02.01.1989 ad
04.01.1989 standing in the name of plaintiff for having paid fee
for grant of building license. Ex.P.13 is also a similar receipt for
having paid the fee for renewal of construction permission
dated 03.03.1989. Ex.P.14 is the sketch appended to the
building license.
22. Ex.P.15 is the tax paid receipt in the name of
plaintiff dated 18.07.2007. Ex.P.16 is the tax paid receipt.
Ex.P.17 is the property register extract of Hallikhed-B gram
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panchayath of the year 2002-03 in respect of suit property
standing in the name of the plaintiff.
23. From these documents it could be made out that
plaintiff is relying on only Ex.P.17 i.e., the property register
extract standing in his name . Even though it is contended that
Gram Panchayath granted the suit property in the name of
plaintiff, no such grant certificate is produced, nor any other
document worth mentioning are produced by the plaintiff.
24. The plaintiff is examined as PW.1 and he has denied
the suggestions by learned counsel for the defendant No.1. But
it is not made clear as to how he derived title in respect of suit
property. He categorically admits during cross examination that
he has not produced any such document issued by Tahasildar.
25. Plaintiff has examined as PW2, who has pleaded his
ignorance regarding details of the suit property. He pleaded his
ignorance that the owner of the suit property was one Mapanna
Jaknoor. He also pleaded his ignorance that after death of
Mapanna Jaknoor property devolved on his brother Lalappa,
who is the father of defendant No.1. With these oral and
documentary evidence, it cannot be said that plaintiff is
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successful in proving either his title or possession over the suit
property.
26. The plaintiff is placing reliance on the judgment
passed in OS.No.80/1989 produced as per Ex.P.7. The said suit
for declaration and permanent injunction in respect of suit
property was filed by defendant No.1 against the plaintiff. The
suit was came to be dismissed as the Trial Court found that the
plaintiff therein has not proved either his title or possession
over the suit property.
27. Merely because defendant No.1 failed to prove her
title and possession over the suit property in OS.No.80/1989, it
will not automatically lead to a conclusion that it is the plaintiff
who is either the owner or in possession of the same to result
in decreeing the present suit for declaration and permanent
injunction filed by the plaintiff. Plaintiff who approached the
Court seeking declaration and permanent injunction is required
to establish his title and possession independently. Admittedly,
the plaintiff is not in possession of any of the title deeds. Even
though he contended that the suit property was granted in his
favour, the grant certificate is not produced. No attempt is
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made to produce at least copy of the same or to summon the
same from the village panchayath. There is absolutely no
explanation as to why none of the documents produced by the
plaintiff supports his contention either regarding his title or
possession.
28. Exs.D.1 to 5 refers to the name of defendant No.1
as owner in possession of the property and she applied for
building construction license. Ex.D.10 the grant certificate
stands in the name of Mapanna Jaknoor, who is admittedly not
related to plaintiff. Exs.P.11 to 13 are of the receipts for the
year 1988-89, which cannot be the basis for granting
declaration of title or possession of the plaintiff. Therefore, I am
of the opinion that plaintiff has failed to prove either his title or
possession over the suit property.
29. It is also pertinent to note that even though
defendant Nos.2 and 3 are representing the Government, no
statutory notice as required under Section 80 of CPC was
issued prior to filing of suit.
30. I have gone through the impugned judgment and
decree passed by the Trial Court and by the First Appellate
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Court. Even though the Courts have observed that plaintiff has
not produced any title deeds nor proved his title, proceeded to
decree the suit in part, declaring that plaintiff is in possession
of the property. Only on the basis of the fact that the similar
suit in OS.No.81/1989 filed by the defendant was came to be
dismissed earlier. There is absolutely no basis for granting such
relief when the plaintiff who sought for declaration of title has
failed to prove the same.
31. In view of the above, the impugned judgment and
decree passed by the Trial Court, confirmed by the First
Appellate Court are required to be set aside. Accordingly, I
answer the substantial questions of law in favour of the
appellant and against the respondent and proceed to pass the
following:
ORDER
i. The appeal is allowed with costs.
ii. The impugned judgment and decree dated
26.03.2008 passed in OS.No.4/2007 on the file
of learned Addl.Civil Judge (JD) Humnabad and
the judgment dated 22.11.2011 passed in
RA.No.143/2011 on the file of the learned
Senior Civil Judge, Humnabad are set aside.
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Consequently, suit of the plaintiff in
OS.No.4/2007 is dismissed with costs.
In view of the disposal of the main appeal, all pending IAs
stand disposed of.
Registry to draw the decree accordingly and send back
the Trial Court and the First Appellate Court records along with
copies of the of the judgment and decree.
Sd/-
JUDGE
BH
