Karnataka High Court
Sri. Keshav S/O Narayan Naik vs Sri. Ashok S/O Hanumanth Naik on 11 July, 2023
Bench: Anil B Katti
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RSA No. 6080 of 2010
IN THE HIGH COURT OF KARNATAKA,
DHARWAD BENCH
DATED THIS THE 11TH DAY OF JULY, 2023
BEFORE
THE HON'BLE MR JUSTICE ANIL B KATTI
RSA NO. 6080 OF 2010
BETWEEN:
SRI. KESHAV S/O. NARAYAN NAIK,
AGE: 62 YEARS, OCC: AGRICULTURE,
R/O. BAILOOR, BHATKAL, TQ: BHATKAL-581350.
...APPELLANT
(BY SRI. CHANDRASHEKHAR N. HARLAPUR, S.S. TATTIMANI
AND P.H. TOTAD, ADVS.)
AND:
Digitally signed by
CHANDRASHEKAR
SRI. ASHOK S/O. HANUMANTH NAIK,
CHANDRASHEKAR LAXMAN
LAXMAN
KATTIMANI
KATTIMANI
Date: 2023.07.14
AGE: 47 YEARS, OCC: AGRICULTURE,
13:30:07 +0530
R/O. BAILOOR, BHATKAL, TQ. BHATKAL-581350.
...RESPONDENT
(BY SRI. J.S. SHETTY ASSOCIATES, ADVOCATE FOR C/R1)
***
RSA FILED U/SEC.100 OF CPC., 1908, AGAINST THE
JUDGEMENT & DECREE DTD:21-08-2010 PASSED IN
R.A.NO.18/2007 ON THE FILE OF THE SENIOR CIVIL JUDGE,
HONAVAR, (ITINERARY COURT AT BHATKAL) ALLOWING THE
APPEAL BY SET ASIDING THE JUDGMENT AND DECREE PASSED
IN O.S.NO.68/2003 DATED 03-08-2007 ON THE FILE OF THE
CIVIL JUDGE (JR.DVN) BHATKAL, DECREEING THE SUIT FILED
FOR DECLARATION & POSSESSION.
THIS RSA COMING ON FOR FINAL HEARING AND THE
SAME HAVING BEEN HEARD AND RESERVED FOR JUDGMENT
ON 06.04.2023, THIS DAY, THE COURT, DELEAVERED THE
FOLLOWING:
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RSA No. 6080 of 2010
JUDGMENT
Appellant/plaintiff feeling aggrieved by judgment of first
appellate Court on the file of Senior Civil Judge, Honavar, in
R.A.No.18/2007 dated 21.08.2010, preferred this appeal.
2. Parties to the appeal are referred with their ranks as
assigned in the trial Court for the sake of convenience.
3. The factual matrix leading to the case of plaintiff
can be stated in nutshell to the effect that plaintiff is absolute
owner and in possession of Bailur village survey No.204/7
measuring 16 guntas which he has purchased under two
separate registered sale deeds dated 20.01.1998 and
12.10.2000 of 8 guntas each under said sale deed and both the
properties situated in the same compound consisting of house,
well, coconut, arecanut and banana trees. There was cattle
shed in the suit property and defendant asked for occupation in
half portion of it. The plaintiff after effecting necessary repair
given the said half portion to the defendant on leave and
license basis. Other than this defendant has no any right over
the suit property. However, defendant in collusion with
panchayat officials got entered his name in the records of suit
property and started asserting his right over half portion of the
house in his occupation. The license to leave is terminated by
RSA No. 6080 of 2010
notice dated 08.03.2023 and same is replied by defendant on
15.03.2003 and claimed that he is the owner of the suit
property. The defendant is in illegal occupation of the half
portion of the suit property and liable to pay rent of Rs.500/-
per month. Therefore, plaintiff was constrained to institute suit
on hand for the relief claimed in the suit.
4. In response to summons, the defendant appeared
through counsel and filed written statement contending that
plaintiff is not owner of house and he was never living in the
suit property as licensee. The notice issued by plaintiff is
suitably replied. It is the case of the defendant that the
originally suit property was belongs to his grandfather Narayan
Pursayya Naik. Thereafter, he delivered the possession to this
defendant and constructed the house assigned with panchayat
No.796. The plaintiff with an intention to grab the house
property in which the defendant is residing has concocted facts
and filed the false suit. Therefore, prayed for dismissal of the
suit.
5. The trial Court has framed necessary issues and
plaintiff to prove his case relied on the evidence of P.Ws.1 to 3
and documents Exs.P.1 to 8. The defendant relied on the
evidence of D.Ws.1 to 3 and documents Exs.D1 to 15. Trial
RSA No. 6080 of 2010
Court after appreciation of evidence on record decreed the suit
of the plaintiff as prayed in the suit.
6. The defendant challenged said judgment and decree
of the trial Court before first appellate Court on the file of
Senior Civil Judge, Honavar, in R.A.No.18/2007 dated
21.08.2010. The first appellate Court after re-appreciation
evidence on record, allowed the appeal and dismissed the suit
of plaintiff.
7. Appellant/plaintiff challenging the divergent finding
recorded by the first appellate Court filed this appeal
contending that first appellate Court did not properly appreciate
the evidence on record and title of suit property by virtue of
registered sale deed Exs.P.2 and 3. The agreement of sale as
per Ex.D.1 dated 07.07.1970 in favour of Narayan Pursayya
Naik, cannot confer any valid title, since no any final sale deed
was got executed by paying the balance of consideration within
the stipulated period of five years. The first appellate Court has
committed serious error in holding that suit for the relief of
declaration as sought in the suit itself is not maintainable. The
approach and appreciation of oral and documentary evidence
by first appellate Court is contrary to law and evidence on
record. Therefore, prayed for allowing the appeal and set-aside
RSA No. 6080 of 2010
the judgment of first appellate Court. Consequently, to restore
the judgment and decree of the trial Court.
8. In response to notice of appeal, the respondent
appeared through counsel.
9. This Court by order dated 24.04.2014 has framed
the following substantial question of law for consideration:
"Whether the first appellate Court has committed
serious error in allowing appeal and set-aside the
judgment of the trial Court by ignoring the material
evidence placed on record and thus judgment of the
first appellate Court is perverse and illegal."
10. Heard the arguments of both sides.
11. On careful perusal of oral and documentary
evidence placed on record by parties to the suit, it would go to
show that plaintiff is claiming to be absolute owner and in
possession of the land bearing survey No.204/7 measuring 16
guntas land which he has purchased under two registered sale
deeds dated 20.08.1998 and 12.10.2000 of 8 guntas each and
both extent of land purchased by him are adjoining to each
other, situated in the same compound and the said area is
consisting of house, well coconut, arecanut, banana trees.
There was cattle shed in the suit property. The defendant is
RSA No. 6080 of 2010
living in half portion of the cattle shed after plaintiff effecting
necessary repair on the basis of leave and license and
defendant in spite of termination of license did not vacate the
house property in his occupation and started asserting his own
right over the house by virtue of entering his name in the
records pertaining to the house in which he is residing. On the
other hand, it is the contention of defendant that he was not
licensee under plaintiff as the suit property originally belongs to
the grandfather of defendant i.e. Narayan Pursayya Naik, who
delivered possession of suit property in favour of defendant,
since then defendant is in possession of the suit property by
constructing the house and residing therein.
12. The trial Court on the basis of Exs.P.2 and 3 held
that plaintiff acquired valid title over the suit property under
the said two registered sales deed Exs.P.2 and 3. The claim of
defendant that his grandfather was in possession of the suit
property by virtue of registered agreement of sale deed
07.07.1970 Ex.D.1 coupled with tax paid receipts has held that
the defendant is in illegal possession of the house situated in
the suit property belongs to the plaintiff and on such finding
decreed the suit of the plaintiff.
RSA No. 6080 of 2010
13. However, first appellate Court by disagreeing with
the finding recorded by the trial Court held that plaintiff by
evidence on record has failed to prove that the house property
in possession of defendant is on the ownership of plaintiff and
registered sale deed Exs.P.2 and 3 does not substantiate the
ownership right of plaintiff over the house in which defendant is
residing. The nature of declaratory relief and consequential
relief sought by plaintiff cannot be legally sustained. On
recording of such finding reversed the judgment and decree of
the trial Court and dismissed the suit of plaintiff.
14. Indisputably, the name of the defendant is recorded
in the tax assessment register of the house bearing panchayat
No.796 produced by plaintiff Ex.P.4 and same also produced by
defendant Ex.D.2. The certificate issued by secretary gram
panchayat Bailur Ex.D.3, would go to show that defendant has
paid tax with respect to house No.796 and tax paid receipt are
produced as per Exs.D.6 to 9 and two KEB bills Exs.D.10 and
11. It is the contention of the plaintiff that defendant in
collusion with the panchayat officials got entered his name in
records of the suit property. The said entries in records of the
panchayat does not confer any title in favour of defendant over
the house in which he is now residing. In support of his
RSA No. 6080 of 2010
contentions reliance is placed on the judgment of Hon'ble Apex
Court H. LAKSHMAIAH REDDY & ORS VS L. VENKATESH
REDDY reported in 2015 SAR (CIVIL) PAGE NO. 611,
wherein it has been observed and held that:
"Mutation entries- significance and purpose of
mutation of a property in the revenue record does
not create or extinguish title nor has it any
presumptive value on title. It only enables the
person in whose favour mutation is ordered to pay
the land revenue in question. The mutation entries
do not convey or extinguish any title those entries
are relevant only for purpose of collection of land
revenue."
There cannot be any dispute with regard to proposition of
law laid down in the said decision to the effect that mutation
entries do not convey or extinguish any title and those entries
are relevant only for the purpose of collection of land revenue.
15. It is the duty of the plaintiff who approached the
Court seeking for the relief to prove the facts pleaded by oral
and documentary evidence. In terms of Section 101 of Indian
Evidence Act, whoever desires any Court to give judgment as
to any legal right or liability dependent on the existence of facts
which he asserts, must prove that those facts exist. When a
RSA No. 6080 of 2010
person is bound to prove the existence of any fact, it is said
that the burden of proof lies on that person. In terms of Section
104 of Indian Evidence Act, the burden of proving any fact
necessary to be proved in order to enable any person to give
evidence of any other fact is on the person who wishes to give
such evidence. In the present case plaintiff wish to give such
evidence to prove that the extent of house in which defendant
is residing is of his ownership and the defendant is residing in
the house on the basis of leave and license, since fact is denied
by the defendant. The defendant is under no obligation to
prove or disprove the above referred fact asserted by plaintiff.
Whether the plaintiff has discharged his initial burden of
proving the existence of above referred fact are not has to be
appreciated by virtue of evidence placed on record.
16. The plaintiff is claiming his ownership of right over
the suit property by virtue of two registered sale deeds dated
20.01.1998 and 12.10.2000 as per Exs.P.2 and 3 respectively.
The extent of land covered under both sale deeds are situated
in the same compound. There was cattle shed earlier and on
request of the defendant, the plaintiff has allowed the
defendant to reside in half portion of the cattle shed by
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RSA No. 6080 of 2010
effecting necessary repair to make use of the house on leave
and license basis.
17. On careful perusal of Exs.P.2 and 3, it would go to
show that there is no reference of cattle shed or house being in
existence in the extent of land purchased by plaintiff under
Exs.P.2 and 3. The tax paid receipt produced by plaintiff Ex.P.4
with respect to house property bearing No.796 stands in the
name of defendant. The question of terminating the lease of
defendant arises only when the plaintiff to prove the fact in
issue that he was owner and in possession of house situated in
the extent of land purchased by him under Exs.P.2 and 3.
Plaintiff other than producing Exs.P.2 and 3 absolutely has not
produced any document to show that he was owner and in
possession of the house in which the defendant is now residing.
18. The defendant is contending that his grandfather
Narayan Pursayya Naik, was owner in possession of suit
property and he has given the same to defendant. Thereafter,
he has constructed the house assigned with gram panchayat
No.796 and residing therein and paying necessary tax. The
name of defendant is appearing with respect to said house in
the assessment extract Ex.D-2 and Secretary Gram Panchayat
issued certificate Ex.D.3 of defendant having paid tax to the
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RSA No. 6080 of 2010
said house. The tax paid receipt Exs.D.6 to 9 and two KEB bills
Exs.D.10 and 11, would go to show that defendant is in
possession of the house in which defendant is residing assigned
with Gram Panchayat No.796. It is for the plaintiff to prove that
earlier name of his vendor was recorded with respect to the
house property bearing Gram Panchayat No.796 and thereafter
by virtue of registered sale deeds Ex.P.2 and 3, the name of
plaintiff is recorded. However, plaintiff has not produced any
such evidence to prove the ownership of right and possession
over the house in which defendant is now residing.
19. It is true that the defendant to substantiate his case
that his grandfather Narayan Pursayya Naik acquired valid title
over land bearing survey No.204/7 and he delivered possession
of suit property and thereafter, he has constructed the house in
which he is now residing assigned with Gram Panchayat No.796
has not produced any documents. The defendant by producing
Ex.D.1 wants demonstrate that his grandfather Narayan
Pursayya Naik was in possession of 8 guntas of land bearing
survey No.204/7 under registered agreement of sale deed
dated 07.07.1970. It is true that the grandfather of defendant
Narayan Pursayya Naik did not get executed final registered
sale deed by paying balance consideration within stipulated
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RSA No. 6080 of 2010
period of five years with respect of land bearing survey
No.204/7 measuring 8 guntas of land. However, the said fact
alone cannot be said as decisive factor to held that the plaintiff
has acquired valid title of possession over the suit property
particularly the house property in which defendant is now
residing.
20. Looking to the registered sale deeds relied by the
plaintiff Exs.P.2 and 3, it would go to show that vendor of
plaintiff is one Gopal Venkatesh Naik from whom plaintiff has
purchased 8 guntas each under two separate sale deeds
Exs.P.2 and 3. The vendor of grandfather of defendant under
Ex.D.1 registered agreement of sale deed dated 07.07.1970 is
one Gopal Manjapppa Naik. If it is to be accepted that the
existence of 8 guntas of land covered under registered
agreement of sale deed dated 07.07.1970 Ex.D.1 is coming
within extent of land purchased by the plaintiff to the extent of
8 guntas each under two registered sale deeds Exs.P.2 and 3,
then it is for the plaintiff to prove the said fact evidence on
record that how he came in possession of 8 guntas of land in
survey No.204/7 subject matter under registered agreement
sale deed Ex.D.1. If it is otherwise, the plaintiff has to show the
total of existence of land in survey No.204/7 and extent of land
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RSA No. 6080 of 2010
sold by his vendor under Exs.P.2 and 3 is different than the one
covered under registered agreement of sale deed Ex.D.1.
Plaintiff also has failed to establish as to how the vendor of
plaintiff Gopal Venkatesh Naik is connected to vendor of
grandfather of defendant Gopal Manjappa Naik. The plaintiff
has not chosen to examine his vendor Gopal Venkatesh Naik or
the vendor under Ex.D.1 Gopal Manjappa Naik to remove the
above ambiguity with respect to the extent of land covered
Exs.P.2, 3 and D.1. The plaintiff has not produced any required
evidence to prove said facts regarding ownership of house
property in which defendant is residing.
21. The plaintiff has sought for relief of declaration that
entry recorded in the name of defendant to the house property
bearing survey No.796 as null and void and sought
consequential relief of possession of the house in which
defendant is residing by issuing mandatory injunction. Further,
Rs.500 for the use of the suit house illegally occupied by
defendant. The defendant has specifically denied the title of
plaintiff to the suit property. The plaintiff has not sought for
any declaration to declare his ownership right over suit
property, but the suit is filed for mandatory injunction to hand
over possession of the suit property in pursuance of Ex.P.5,
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RSA No. 6080 of 2010
said to be termination of license. The plaintiff initially has failed
to prove that defendant is residing in the house property under
leave and license as licensee of plaintiff. Therefore, there is no
question of granting mandatory injunction on the basis of
termination of license Ex.P.5. There is serious cloud of doubt on
the title of plaintiff in view of the fact that vendor of plaintiff
Gopal Venkatesh Naik is different and that the vendor of
Narayan Purasayya Naik i.e. Gopal Manajppa Naik under
Ex.D.1. The plaintiff has also not offered any explanation by
evidence on record as to how the tile of 8 guntas of land vested
with Gopal Manjappa Naik, so as to convey the same in favour
of grandfather of defendant. Plaintiff has not examined his
vendor Gopal Venkatesh Naik nor the vendor under Ex.D.1
Gopal Manjappa Naik, to remove the above referred ambiguity,
so as to hold that the vendor of plaintiff has clear title of 16
guntas of land sold under Exs.P.2 and 3. The relationship of
plaintiff and defendant brought on record during cross
examination of P.W.1 and his witness and also in the cross
examination of D.W.1 is further strengthened by the statement
of plaintiff under Ex.D.12 dated 11.01.1996. One Narayan
Purasayya Naik is the father of plaintiff, he has two sons by
name Hanumanth and Keshava (plaintiff), the elder brother of
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RSA No. 6080 of 2010
plaintiff Hanumanth died living behind his two sons by name
Ashok and Suresh. The extent of land 16 guntas of land bearing
in survey No.204/7 was in the name of his father Narayan
Purassyya Naik. Further claimed that his father intended to
transfer entire extent of 16 guntas to his brother Hanumanth
and same is reiterated in Ex.D.13 dated 11.01.1996 by the
plaintiff in the letter addressed to Tahasildar Bhatkal. It has
been recited in Ex.D.13 that himself and the children of his
brother are residing in the same house separately. Therefore,
in view of the said statement of plaintiff himself, the question of
plaintiff acquiring absolute right over suit property under
Esx.P.2 and 3 is very much doubtful. Therefore, the plaintiff
ought to have sought for the relief of declaration to declare his
absolute right over suit property. However, the trial Court only
on the basis of registered sale deeds in favour of plaintiff as per
Exs.P.2 and 3 has held that defendant is residing in the house
of plaintiff under leave and license as licensee of plaintiff and
granted the relief prayed by the plaintiff in the suit, since the
defendant has failed to prove the right over the suit property.
The failure of defendant to prove his defence of his exclusive
right cannot be a ground to grant the relief claimed in the suit.
The first appellate Court has rightly appreciated the evidence
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RSA No. 6080 of 2010
on record and was justified in reversing judgment and decree of
trial Court in decreeing the suit of the plaintiff. The said finding
recorded by the first appellate Court is based on material
evidence on record and it cannot be termed as perverse or
illegal. Consequently, the substantial question of law is
answered in the negative and proceed to the following:
ORDER
The appeal filed by the appellant/plaintiff is hereby
dismissed.
The judgment of the first appellate Court on the file of
Senior Civil Judge, Honavar in R.A.No.18.2007 dated
21.08.2010 is confirmed.
Registry is directed to transmit the records with copy of
this judgment to trial Court.
(Sd/-)
JUDGE
AC/-
